Fort Worth & N. O. Ry. Co. v. Pearce

• Court: Texas Supreme Court
• Writing for the Court: Acker
• Citation: Fort Worth & N. O. Ry. Co. v. Pearce, 12 S.W. 864 (Tex. 1889)
• Decision Date: 03 December 1889
• Parties: FORT WORTH & N. O. RY. CO. <I>v.</I> PEARCE.

12 S.W. 864

FORT WORTH & N. O. RY. CO.v.

PEARCE.

Supreme Court of Texas.

December 3, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Templeton & Carter, for appellant.

ACKER, P. J.

W. W. Pearce brought this suit, as guardian of the estate of his minor daughter, Nannie Pearce, against the Fort Worth & New Orleans Railway Company, to recover damages for the injury done to block 45, in Tucker's addition to the city of Fort Worth, situated on Jones street, alleged to be the property of said minor. It was alleged that the block was only valuable for residence purposes, and had been permanently injured and depreciated in value to the amount of $3,000, in consequence of defendant having constructed its road-bed along Jones street, adjacent to the property, and occupying and using Jones street as its right of way; operating trains thereon; emitting sparks of fire from its locomotives, endangering any buildings that might be erected on the block; emitting smoke and cinders from passing locomotives; making harassing noises, by ringing bells, blowing whistles, and the rumbling and jarring of passing trains. The defendant answered by general denial, and, specially, that it constructed its railroad along and upon Jones street under an ordinance of the city of Fort Worth authorizing it to do so, and constructed its road with care, so as to injure abutting property as little as possible. There was verdict and judgment for plaintiff for $1,600. There is no appearance here for appellee. No special charges were asked, and no exceptions were taken to the admission or exclusion of evidence on the trial. The assignments of error presented, relate to the charge given. Under the first assignment it is urged that the court erred in charging the jury: "You are instructed that if you believe from the evidence that plaintiff's property, at or about the time alleged in the petition, was damaged by defendant," etc.; "because the charge assumed that the property described in the petition had been proven to be the property of plaintiff, and did not submit to the jury the question of ownership of said property, nor the extent of the interest of said minor in said property, at the time of the construction of said railroad." Plaintiff proved a connected chain of title from the government, all of the links being shown by written muniments, except two, — one of which was a deed from the patentee, E. S. Terrell, to Julian Field, the execution and delivery of which was proved by the testimony of Julian Field, without objection; and the other, plaintiff's heirship to her mother, Nannie J. Wesley, to whom the last conveyance was made, was admitted by defendant. This evidence was not controverted. There can be no charge upon the weight of evidence, when there is no conflict in the evidence. Under the evidence in this case, the court might properly have charged the jury that plaintiff had proven title to the land. Teal v. Terrell, 58 Tex. 261.

The second assignment of error is: "The court erred in the following portion of said charge: `In estimating the depreciation in value of plaintiff's property, if you believe there was any such depreciation under the foregoing instructions, you may take into consideration the depreciation, if any, that may have been caused by the excavations on Jones street, and also any depreciation in value of said property you may believe was occasioned by the probable fact that defendant in operating and using its road would make unusual and loud noises, such as ringing of bells and blowing of...