Greeley, S.L. & P. Ry. Co. v. Yeager

• Decision Date: 04 May 1888
• Citation: 11 Colo. 345,18 P. 211
• Parties: GREELEY, S. L. & P. RY. CO. v. YEAGER.
• Court: Colorado Supreme Court

18 P. 211

11 Colo. 345

GREELEY, S. L. & P. RY. CO. v. YEAGER.

Supreme Court of Colorado

May 4, 1888

Commissioners' decision. Appeal from district court, Larimer conty.

Joshua H. Yeager brought an action against the Greeley, Salt Lake &amp Pacific Railway Company to recover damages for willfully and maliciously injuring his land. Judgment for plaintiff. Defendant appeals.

DE FRANCE, C., dissenting.

Teller & Orahood, for appellant.

E A. Ballard, for appellee.

RISING C.

The plaintiff, Yeager, brought this action in the county court of Larimer county against the appellant, as defendant, and there recovered a judgment. The defendant appealed the case to the district court of said county, where the plaintiff also obtained a judgment, from which the defendant has appealed to this court. At the time of bringing the action the plaintiff was the owner and in the actual possession of a tract of land of about 160 acres, situate in said county of Larimer, except a strip thereof, 50 feet in width, which he had previously conveyed to the defendant, to be used as a right of way for its railway. In the construction of defendant's road-bed excavations were made in, and soil and dirt were removed from, plaintiff's land, and some portion of his fences was destroyed. The plaintiff alleges that this injury was done willfully and maliciously by the defendant, through and by its agents and servants. There was some evidence at the trial tending to show that the damage done to plaintiff in this respect was done willfully and knowingly, and in disregard of his rights. The district court, by consent of the parties, charged the jury orally, and, in addition to other propositions contained in its charge, instructed the jury that if they found from the evidence that the defendant had committed the trespasses complained of, and further found that it had done so willfully and maliciously, they might award exemplary damages. The defendant excepted to that part of the charge relating to exemplary damages. Whether the charge of the court was erroneous in this particular, forms the principal matter of contention in this court. The appellee insists, however, by way of preliminary objections, that this and other questions discussed by appellant are not properly raised, and that they cannot be heard and determined by this court in consonance with its rules and practice. The grounds of the motion for a new trial interposed by the appellant in the court below are as follows: ' First, that the court erred in its instructions to the jury, in that the jury were instructed that they might find exemplary damages in this case, said instructions having been excepted to when given; second, that the evidence was insufficient to justify the verdict; third, that the said verdict is contrary to the law; fourth, that the damages in said verdict are excessive, appearing to have been found under the influence of passion or prejudice; fifth, that exemplary damages cannot be found under the pleadings in this case.' The assignment of errors, attached to the transcript of record is as follows: ' First. The court erred in refusing to admit proper testimony offered on the part of the defendant on the trial below. Second. The court erred in admitting improper testimony offered on the part of the plaintiff on the trial below. Third. The court erred in admitting incompetent, immaterial, and irrelevant testimony of J. H. Yeager, said plaintiff, as to conversations with one McCarthy, not shown to be an agent or representative of such defendant. Fourth. The court erred in refusing to instruct the jury, on the request of said defendant, as follows: 'The court further instructs the jury that they cannot find exemplary damages,--that is, damages beyond actual pecuniary loss,--unless they believe from the evidence that plaintiff has actually sustained some injury, other than pecuniary, which can be compensated by such pecuniary damages.' Fifth. The court erred in giving the following instructions to the jury: [Here follows the court's charge in full.] Sixth. The court erred in overruling the said defendant's motion for a new trial for the reasons therein set forth. Seventh. The court erred in giving judgment on the verdict of the jury in favor of the plaintiff and against the defendant.'

The main question raised upon this appeal relates to the ruling of the court in instructing the jury that they might award exemplary damages, in the following language: 'If you find from the evidence that the defendant's agents or servants willfully and intentionally and purposely, on their part, went outside of the defendant's right of way in disregard of the plaintiff's rights, and in defiance of his notice and protest against their so doing, you may find that it was done maliciously, and in such case you may assess exemplary damages; by which I mean that you may assess some reasonable amount in addition to the pecuniary damages suffered by the plaintiff, which, in your dispassionate judgment, will properly vindicate the plaintiff's rights to his property, and the control and protection thereof, and serve as a warning and restraint upon the defendant against such willful and malicious disregard of the plaintiff's rights to protect and control his own property.' Error is assigned upon this ruling, and if the question thereby raised is so presented here that we are, by statutory provisions called upon to pass upon it, or are, by the rules and practice of this court, permitted so to do, then the determination of this question will render the consideration of other errors assigned unnecessary, and we need not consider the ruling...