Colorado Springs Rapid Transit Ry. Co. v. Albrecht

• Decision Date: 13 May 1912
• Citation: 123 P. 957,22 Colo.App. 201
• Parties: COLORADO SPRINGS RAPID TRANSIT RY. CO. et al. v. ALBRECHT.
• Court: Colorado Court of Appeals

123 P. 957

22 Colo.App. 201

COLORADO SPRINGS RAPID TRANSIT RY. CO. et al. v. ALBRECHT.

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, El Paso County; W.S. Morris, Judge.

Action by Carl F. Albrecht against the Colorado Springs Rapid Transit Railway Company and another. Judgment for plaintiff and defendants appeal. Reversed and remanded.

David P. Strickler and J.A. Ritter, of Colorado Springs, for appellants.

Orr &amp Cunningham and H.M. Mason, of Colorado Springs, for appellee.

KING J.

This action was brought by appellee against the Colorado Springs Rapid Transit Railway Company and the Colorado Springs &amp Interurban Railway Company, corporations, as defendants, to recover damages in the sum of $3,500, alleged to have been sustained by plaintiff through the negligence of the Colorado Springs Rapid Transit Railway Company in building and maintaining a stone wall in the bed of a stream on and along the boundary of plaintiff's land, in such condition that it became undermined, and, falling into the stream, caused the water to overflow upon and flood the land of plaintiff.

The complaint charged that the flood water swept over plaintiff's premises with such velocity and force that his dwelling was torn from its foundation and its walls damaged; that the land was washed away to such an extent that growing fruit trees were uprooted, and shrubs, asparagus, and strawberry beds were entirely carried away and destroyed, as well as the stone abutments of a footbridge, the footbridge itself, and certain outbuildings, and some personal property; that immense deposits of sand and rubbish were left upon and covering the premises, besides other permanent injury, not necessary to mention.

Defendants denied the allegations of negligence, and, as an affirmative defense, alleged that the injury to plaintiff's premises, as well as the destruction of the stone wall belonging to the said rapid transit company, was caused by an unprecedented flood, a cloudburst of unusual size and devastating character, unforeseen and unforeseeable by defendant; in other words, an act of God.

The jury returned a verdict for plaintiff against both defendants, upon which judgment was rendered by the court, and from which defendants appealed.

The only assignments of errors necessary to be considered are those relating to the proof of damage to plaintiff's land and the failure of the court to give any instruction as to the measure of damage. The only instruction given on the question of damage, or to guide the jury in determining the amount thereof, was that, if they found for the plaintiff, they should give him "such amount as you may find from the evidence he is entitled to recover, not exceeding the sum of $3,500." No testimony was offered as to the value of the land, either before or after the injury.

The plaintiff, in order to establish his damage to the freehold, testified as to the cost of removing the sand, replacing the house on its foundation and repairing it, replacing the abutments of the footbridge, and as to his estimate of the value of the growing fruit trees and of the beds of asparagus and strawberries, and the value of the outbuildings. This testimony and these estimates of values were, we think, admissible as elements tending to show the difference in value of the land before and after the flood; but it is settled in this state that the amount of the damage to real estate, under circumstances as shown in this case, cannot be fixed and determined by such method, without reference to the value of the land before and after the injury complained of, and that the jury must be so instructed. The rule governing the duty of the court in instructing the jury, and as to the method of proving the amount of damages, is declared by the Supreme Court of this state in the case of Mustang Reservoir, etc., Co. v. Hissman, 49 Colo. 308, 112 P. 800; and as the facts (except as to certain personal property) are strikingly similar, indeed almost identical with those of the case now under consideration, we shall quote from the opinion of Mr. Justice Bailey in the case cited: "It is settled doctrine everywhere that: 'The rules by which damages are to be estimated should be laid down by the court, and it is its duty to explain to the jury the basis on which the assessment should be made, the proper elements of the damage involved, and within what limits they may be estimated in the case involved. The jury should not be left to determine the amount from conjecture and belief without reference to the legal rules determining the bounds and limits of compensation.' 13 Cyc. 236. This is a rule of general practice. The court, on its own motion, should have instructed on this point."

The case cited is also directly in point, and controlling, on the method of proof of damages to the freehold, and amply supported by the authorities therein collected. The necessity for a definite instruction, as hereinbefore set forth, is made evident and emphatic by a reading of the bill of exceptions in this case. Much of the time during the introduction of testimony the learned judge who presided at the trial was in doubt as to the proper rule for the measure of damages; and yet the jury was left wholly without a...