Chicago, R. I. & G. Ry. Co. v. Seale

• Decision Date: 21 October 1905
• Citation: 89 S.W. 997
• Parties: CHICAGO, R. I. & G. RY. CO. v. SEALE et al.
• Court: Texas Court of Appeals

89 S.W. 997

CHICAGO, R. I. & G. RY. CO. v. SEALE et al.

Court of Civil Appeals of Texas.

October 21, 1905.

Rehearing denied November 11, 1905.

Appeal from Dallas County Court; Ed. S. Lauderdale, Judge.

Action by Allen Seale and another against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed on condition.

Rehearing denied November 11, 1905.

This suit was brought by Allen Seale and W. H. Brown in the county court of Dallas county against the Chicago, Rock Island &amp Gulf Railway Company to recover damages, on the ground that the railway company, by the negligent construction of its roadbed through a certain tract of land belonging to the plaintiffs, caused their land to be overflowed, whereby they sustained injury. Upon trial a verdict was rendered in favor of the plaintiffs for the sum of $521.80, from which verdict and the judgment thereon the appellant has appealed to this court.

N. H. Lassiter, Hill & Dabney, and M. W. Townsend, for appellant. Hiram F. Lively, J. Q. C. Lamar, and W. M. Holland, for appellees.

BOOKHOUT, J.

Plaintiffs sought to recover damages occasioned by the wrongful and negligent overflowing of their lands by reason of the faulty and negligent construction of appellant's roadbed, right of way, and barrow pits dug in the construction of same, resulting in the loss of a cotton crop thereon, and the setting and sowing of Johnson grass on said lands and inundating and overflowing same so that they were deprived of the use and benefit thereof. There was testimony to the effect that as a result of the overflows, plaintiffs' lands were set with Johnson grass, and that to repair the injury resulting therefrom, and put the land in the condition it was prior to the overflows, plaintiffs caused the Johnson grass to be dug up and the places where it had been, salted to kill any roots that might remain. Plaintiff Seale testified on direct examination that it cost him about $75 to remove the Johnson grass. Upon cross-examination he testified: "The Johnson grass on my place that I testified about was dug up by my brother and Mr. Turner. It was dug up last spring or summer. I paid them for it. My brother is at home, and is not in attendance upon this trial. I don't know how many days they worked on it; don't know how many bunches of it they dug up. They dug it all up, I guess. I paid them about $60, or something over $60, for digging it up, and then there was about $10 worth of salt used, and I know the whole thing cost me something over $70. I saw 10 or 15 bunches of Johnson grass out there, but I don't know how many more there may have been." This was all the testimony introduced as to the cost of removing the Johnson grass and salting the land. No evidence was introduced to show that the amount paid by plaintiff for removing the Johnson grass and for salting the land was reasonable or the necessary cost thereof. In this condition of the evidence the appellant requested the court to charge the jury as follows: "There is no evidence in this case tending to show what was the reasonable or necessary cost of removing the Johnson grass from plaintiff's land, and you will therefore not allow plaintiffs anything on account of said Johnson grass being sown on their land." This charge was refused, and the court's main charge submitted the issue of the cost of removing the Johnson grass to the jury as a ground for recovery. The action of the court in refusing the special charge and in submitting this issue as a basis of recovery is complained of as error by proper assignments. The evidence being that the injury to the land was of a temporary character, the railway company was liable for the amount of money necessary to repair the injury and put the land in the condition it was prior to the overflows. What plaintiff paid to have the Johnson grass removed is not the criterion, for the company is not bound by such payment. It was necessary to go further and show that the amount so paid was the reasonable cost of removing the Johnson grass and placing the land in the condition it was before the overflows. Wheeler v. Railway, 91 Tex. 356, 43 S. W. 876; Railway Co. v. Taylor (Tex. Civ. App.) 58 S. W. 167; Railway Co. v. Ison (Tex. Civ. App.) 83 S. W. 408. It follows that the trial court erred in refusing appellant's special charge, and also in submitting to the jury the cost paid by plaintiffs for removing the Johnson grass and salting the land as a basis for a finding for plaintiffs.

It is insisted that the court erred in overruling appellant's motion to exclude and withdraw from the jury the testimony of the plaintiff Allen Seale "that the reasonable rental value of the four acres that I could not put in cultivation was about $12.50 per acre." On cross-examination said witness testified: "I never heard of any land out there being rented for $12.50 cash per acre. I figured out that the rental value of it was $12.50 per acre by seeing how much I got off of it and how much I had in cultivation. Turner rented the place from me in 1903, and I furnished the teams and Turner furnished all the balance. Under that...