Fremont, E. & M. V. R. Co. v. Crum

• Decision Date: 02 July 1890
• Citation: 46 N.W. 217,30 Neb. 70
• Parties: FREMONT, E. & M. V. R. CO. v. MARGARET CRUM
• Court: Nebraska Supreme Court

46 N.W. 217

30 Neb. 70

FREMONT, E. & M. V. R. CO. v. MARGARET CRUM

Supreme Court of Nebraska

July 2, 1890

ERROR to the district court for Antelope county. Tried below before NORRIS, J.

Affirmed.

John B Hawley, for plaintiff in error, cited, on the contention that the measure of damages was the difference in value of land before and after fire: B. & M. R. Co. v. Beebe, 14 Neb. 463; Drake v. R. Co., 63 Iowa 310; Brooks v. R. Co., 34 N.W. [Ia.], 805; Wallace v Goodad, 18 N. H., 456; Longfellow v. Quimby, 33 Me. 457; Chipman v. Hibberd, 6 Cal. 162; Van Deusen v. Young, 29 Barb. [N. Y.], 9; U. S. v Taylor, 35 F. 488; Chase v. R. Co., 24 Barb. [N. Y.], 273-5; Blakeley v. R. Co., 25 Neb. 207; F., E. & M. V. R. Co. v. Marley, Id., 138; Rhodes v. Baird, 16 Ohio St. 573.

Thos. O'Day, contra, cited, in reply to the contention: Kolb v. Bankhead, 18 Tex. 229; 3 Sutherland, Damages, pp. 375, 381; Foote v. Merrill, 54 N. H., 490; Wingate v. Smith, 20 Me. 287; Wetherbee v. Green, 22 Mich. 311; Grant v. Smith, 26 Id., 201; Davis v. Easley, 13 Ill. 192; R. Co. v. Maley, 40 N. W. R., 948; Whitbeck v. R. Co., 36 Barb. [N. Y.], 644; Stockbridge Iron Co. v. Cone Iron Wks., 102 Mass. 80; Forsyth v. Wells, 41 Pa. 291; Maye v. Yappen, 23 Cal. 306; Robertson v. Jones, 71 Ill. 405; McLean Coal Co. v. Long, 81 Id., 359; Adams v. Blodgett, 47 N. H., 219; Goller v. Fett, 30 Cal. 481; Longfellow v. Quimby, 33 Me. 457; Herman, Executions, pp. 160, 235-6, 524; Whipple v. Foote, 2 Johns. [N. Y.], 418; Lanning v. R. Co., 27 N.W. 478; Campbell v. Crone, 10 Neb. 571; Goodman v. Kennedy, Id., 275.

OPINION

COBB, CH. J.

The plaintiff below alleged "that the defendant is an incorporated railroad company, owning and operating its line in said county near the plaintiff's land, described in her petition as amended by leave of the court as the north half of the north half of section 9, township 25, range 7 west.

"I. That on April 6, 1887, the defendant carelessly and negligently omitted to keep its right of way free and clear of dry and combustible materials, but permitted a large quantity of dry grass and weeds to accumulate upon its track near the premises of plaintiff, and that the agents and servants of defendants entered thereon, and upon the plaintiff's premises adjacent thereto, and set out a fire which destroyed 2,431 trees living and growing upon her land, to her damage $ 729.30.

"II. That on April 7, 1887, the defendant carelessly and negligently omitted to keep its right of way free and clear of dry and combustible materials, and the agents and servants of defendant, in running its engine over its line of road at and near plaintiff's premises, negligently permitted the engine to cast out sparks and coals of fire into the dry grass and other combustible material on the defendant's right of way, and on the plaintiff's premises adjacent thereto, which caused a fire that spread to and over the plaintiff's premises and land, described in her amended petition as the east half of the southwest quarter of section four, township twenty-five, range seven west, and there burned up and destroyed 9,709 trees, living and growing upon her land, without any fault or negligence on her part, to her damage $ 2,912.70.

"III. That on October 6, 1887, the defendant carelessly and negligently omitted to keep its right of way free and clear of dry and combustible material, but permitted large quantities of dry grass and weeds to accumulate upon its track and right of way near the premises of plaintiff, and permitted its servants and agents to enter thereon and upon the premises of plaintiff, described in her amended petition as the southeast quarter of the southeast quarter of section four, township twenty-five, range seven west, in said county, and set out a fire that burned and destroyed 7,278 trees, living and growing on her said land and premises, without any fault on her part, to her damage $ 2,183.40."

The defendant's answer admitted that it was a corporation and denied all other allegations in the premises.

There was a trial to a jury, with verdict and judgment for the plaintiff for $ 2,751.30.

The defendant brings the case to this court on numerous errors, the first three against the verdict and judgment, fourteen as to instructions of the court either given to the jury or refused, one to allowance of evidence over defendant's objections, one to allowance by the court to plaintiff to reopen the case and introduce evidence after argument had been entered upon, one to allowance by the court to plaintiff to amend petition after argument had been entered upon, one to refusal by the court of defendant's motion for continuance subsequent to the plaintiff's amendment, and one to the overruling of defendant's motion for a new trial.

There was evidence of damage to the growing trees of the plaintiff caused by three separate fires: the first, on April 6, 1887, by fire set out by section men in the employ of defendant engaged in burning off the right of way of defendant's track, escaping to and running over the plaintiff's timber land; the second, on April 7, 1887, was set out by sparks and coals escaping from one of defendant's engines, igniting the grass, weeds, and other combustible matter upon such right of way and track, running thence into plaintiff's timber land; and the third fire, on October 6, 1887, set out by sparks and coals escaping from one of defendant's engines, in like manner as the second, and running upon and burning the plaintiff's timber lands.

There was evidence that the first fire burned over and through and partially destroyed about forty acres of timber; that the second burned over and through and partially destroyed from thirty-five to forty acres of timber land, and that the third fire burned over and partially destroyed about ten acres.

A great deal of evidence is scattered through the 225 pages of the bill of exceptions, as to the quality and value of the timber destroyed by these fires. The plaintiff's husband testified, as to the first fire, that the trees were principally oak and white ash, in a good condition; that most of them had been trimmed up, the oak trees over twelve feet in height and of an average diameter of three to four inches. Upon cross-examination, the witness stated that of this timber there were some cottonwood, willow, and box-elder, but that the "principal heft of it" was white ash, and that portions of the ash trees grew in clusters, about half of them, some covering a rod and others five or six feet.

The plaintiff's son, D. C. McCartney, testified that the timber destroyed was ash, some few box-elder, and some few of oak; that the oak did not amount to much, was mere bur-oak, such as we have in this county; that situate on the south side of the land they had trimmed, but did not know as to the north side. In answer to the "Q. State how the timber stood as to clusters," the witness answered: "I have counted some clusters with fourteen trees in them, and the biggest part of them were in clusters."

A. Bare testified that part of the ash trees grew single, and others in clusters of four to six feet in space.

The trees killed by the fires were examined and counted by the witnesses Bare, Yates, and Cooley, whose testimony was given. Yates testified that he counted 3,589 trees killed by the third fire; that he counted none under an inch in diameter, as instructed; that they were mostly ash, some oak, and would average three inches in thickness. Bare had counted 865 trees killed by the second fire, and 4,494 by the third, and 3,589 by the first, in all 8,948. George W. Cooley testified that he had examined and counted 490 of the trees killed by the first fire, and 5,215 by the second, and had counted none, thought to be killed, less than one inch in size, making a total of trees killed, as counted, of 18,242. These witnesses testified that each examined and counted the trees on ground separate from the others, and that neither went over the other's count.

The principal question of difficulty in the case arises from the application of the rule for the estimation of the plaintiff's damages. The plaintiff in error contends that the growing trees could only be regarded as a part of the realty, and that the measure of damages was the difference in the value of the land with the standing timber before the fire and afterwards. Were this rule conceded to be the true measure of damages, it is apparent that the plaintiff in error, having tried its case, submitted evidence, and procured the court to charge the jury upon a different principle, cannot now obtain a reversal for error of the court in trying the case upon such other theory. But I think that the true measure of damages must be held to be the amount of damage the trees suffered by reason of the fire.

The principal effort, by the plaintiff, seems to have been to establish the value of the trees as living timber, and for this purpose several witnesses were sworn as to the value and price of shade trees in the town of Neligh, if sold singly, or in very small quantities. I am not prepared to say that this evidence was entirely inadmissible. It may be gathered from the testimony that some of the trees killed were susceptible of being taken up, carried to a distance, and transplanted for shade or ornamental trees.

J. F Merritt, one of the most intelligent of the plaintiff's witnesses, having testified as to the sale of shade and ornamental trees in the market of Neligh, and having testified as to his knowledge of, and familiarity with, the plaintiff's premises, and the timber destroyed, stated, in answer to the "Q. What were the prices of such trees in the year 1887? A. I would explain that the most of those trees are larger than those generally sold on the...