Hunt v. Chicago, B. & Q. R. Co.

• Decision Date: 03 June 1966
• Docket Number: No. 36162,36162
• Citation: 180 Neb. 375,143 N.W.2d 263
• Court: Nebraska Supreme Court
• Parties: Willard HUNT, Appellee, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant.

Page 263

143 N.W.2d 263

180 Neb. 375

Willard HUNT, Appellee, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant.

No. 36162.

Supreme Court of Nebraska.

June 3, 1966.

Syllabus by the Court

1. Damages for the temporary injury to real property are measured by the loss sustained by the owner, and may include cost of restoration and repair not exceeding the diminution in value of the real estate, and reduction in value of the use or in rental value.

2. Damages for injury to personal property are measured by the value before injury of property destroyed; as to property injured but not destroyed, damages are measured either by its diminution in value or by the cost of restoration or repair, whichever is less.

3. An instruction which fails to state correctly all of the items and elements necessary to be considered by the jury in assessing damages is erroneous.

Curtis & Curtis, Imperial, for appellant.

Daniel E. Owens, Benkelman, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and KUNS, District Judge.

KUNS, District Judge.

Plaintiff brought this action against defendant to recover damages alleged to have been caused by the negligent maintenance of a drain under defendant's railroad track in Enders, Nebraska. Defendant denied liability. Upon evidence introduced by the plaintiff only, the case was submitted to the jury, which returned a verdict for plaintiff in the amount of $2,500. Defendant's motion for new trial was overruled, and it has appealed, assigning error in the instructions relating to the measure of damages.

Briefly, plaintiff's evidence indicated that he was the owner of land abutting the railroad, purchased in 1956; the drain then existing was small and clogged frequently; he had made numerous requests to defendant to correct this condition, without success; and whenever a substantial rain occurred, the drain clogged and backed water upon his property. In a single cause of action, he complained of two particular occasions--in May 1962, and July 1963,--when damage was caused. In May 1962, flooding ruined a cesspool, and he disconnected it from his basement house and closed the opening through which water had come. Two power mowers and an electric motor were rendered valueless, the value thereof being stated at $235. In July 1963, his well was contaminated and numerous tools were rusted after the waters subsided. Plaintiff stated that the tools had been worth $1,000. before and $500 after the flooding. Plaintiff testified that, in his opinion, his property had been worth $2,500. before it was flooded and $500 afterwards.

Defendant interposed objections to the testimony regarding the depreciation in value of the real estate on the ground that it did not reflect the proper measure of damages. The trial court overruled the objections and instructed the jury in instruction No. 9, that the measure of damages to the real estate was the difference between the market value immediately before the flooding on the several occasions and immediately thereafter. This instruction would be appropriate if the injury to plaintiff were permanent and not susceptible of correction. Plaintiff, however, had grounded his action upon the failure and neglect of defendant to clean the drain or to enlarge it so that it would clean itself as water passed through it. This...