Golden v. Louisville & N.R. Co.

• Citation: 14 S.W.2d 379,228 Ky. 134
• Parties: GOLDEN v. LOUISVILLE & N. R. CO.
• Decision Date: 19 February 1929
• Court: Court of Appeals of Kentucky

14 S.W.2d 379

228 Ky. 134

GOLDEN v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

February 19, 1929

Appeal from Circuit Court, Knox County.

Action by Steve E. Golden against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

B. B Golden and J. S. Golden, both of Pineville, for appellant.

Woodward Warfield & Hobson and Ashby M. Warren, all of Louisville, and Black, Owens & Black, of Barbourville, for appellee.

WILLIS J.

This is an action to recover damages for injury to real property. The Louisville & Nashville Railroad Company double-tracked its railroad in Knox county. The new or second track in the region involved in this controversy was built about 1,400 feet from the old track and crossed a public road known as the California branch road, which connects with the state highway at a point between Corbin and Barbourville. Steve E Golden owns a farm some distance from the railroad, but located on the branch road. This action was instituted by Golden against the railroad company alleging that it had built a large fill across the road, the approaches to which were quite steep, and that it could not be used for hauling the products of his farm and mine to market. The plaintiff's petition, as finally formulated, claimed general damages for a depreciation in the vendible value of his farm directly resulting from the obstruction of the road and special damages for loss of profits on crops and coal, which he was unable to market. The circuit court construed the pleadings as confining the plaintiff to damages for a reduction of the vendible value of his farm, if any, and declined to submit to the jury any issue as to special damages. The jury returned a verdict for the defendant. On this appeal by plaintiff it is insisted that the court committed reversal error in the admission and limitation of evidence, and in the instructions to the jury.

The evidence admitted over plaintiff's objection considered of testimony to the effect that there was another road equally as good and fully as convenient for plaintiff's use. The court also admitted evidence to the effect that the obstructed road was just as bad or worse in other places as at the crossing. Evidence was also admitted to the effect that coal mines similar to that of plaintiff could not be operated at a profit under the demoralized condition of the coal market. If the circuit court was correct in its conception of the pleadings, the ruling upon the evidence in question was justified. If the plaintiff had another road equally accessible and convenient, there was no reason why he should not use it to market his crops and coal. Because one of his outlets had been obstructed, plaintiff was not at liberty to permit his crops to perish or his mines to lie idle at the expense of appellant. Louisville & N. R. Co. v. Cooper, 164 Ky. 494, 175 S.W. 1034, L. R. A. 1915E, 336. By a parity of reasoning, it was equally competent to prove that, even though the crossing had been in perfect condition, plaintiff was not hurt because the remainder of the road was not in passable condition. It would benefit plaintiff nothing to cross the railroad if he could not then get to market. The evidence did not justify the wrong of defendant, but it tended to show that it was not the proximate cause of the special injury. Likewise the evidence respecting the profits to be made from the operation of coal mines similar to that of plaintiff was admissible. If the plaintiff should be entitled to recover damages for failure to operate his coal mines, it is certainly competent for defendant to prove that no profits could be made at such mines.

But we are convinced from an examination of the record that the essence of plaintiff's cause of action was the direct damage to his farm. The railroad structure was permanent, and, according to the evidence, the crossing was completed and the roadway across the track was surfaced. It must be regarded, under the evidence, as a permanent structure for which the plaintiff can only recover the depreciation in the value of his property, if any, caused by the permanent obstruction. Louisville & N. R. Co. v. Bennett, 207 Ky. 776, 271 S.W. 71; Payne v. Smith, 198 Ky. 564, 249 S.W. 995; Louisville & N. R. Co. v. Crain, 189 Ky. 431, 224 S.W. 1063; Cole & Crane v. May, 185 Ky. 135, 214 S.W. 885.

It is true we have held that, when the injury is temporary and may be remedied at reasonable expense, recurring recoveries may be had; but, where the injury is permanent and the damage resulting is fixed and consists of depreciation in the value of the property, a recovery must be had once for all. Louisville & N. R. Co. v. Whitsell, 125 Ky. 433, 101 S.W. 334, 31 Ky. Law Rep. 76. If the evidence be in conflict as to whether the injury is temporary or permanent, the question should be submitted to the jury under appropriate instructions. Louisville & N. R. Co. v. Bennett, 196 Ky. 679, 246 S.W. 121; Honaker v. Chesapeake & Ohio Ry Co., 209 Ky. 576, 273 S.W. 81. The pleadings and proof in this case, however, leave no room for doubt that the roadbed constructed by the defendant is a permanent structure, and there is nothing to indicate that the difficulties encountered can be corrected at any reasonable expense. Louisville & N....