Hutcherson v. Louisville & N. R. Co.

• Decision Date: 07 February 1933
• Citation: 57 S.W.2d 12,247 Ky. 317
• Parties: HUTCHERSON v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

57 S.W.2d 12

247 Ky. 317

HUTCHERSON v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

February 7, 1933

Appeal from Circuit Court, Franklin County.

Action by William Hutcherson against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Polk South, Jr., of Frankfort, for appellant.

Morris & Jones, of Frankfort, and Ashby M. Warren, of Louisville for appellee.

RICHARDSON J.

The Louisville & Nashville Railroad Company owned and operated on Broadway street, Frankfort, Ky. a line of railroad extending from Lexington, Ky. to Louisville, Ky. On February 23, 1928 the city council of the city of Frankfort introduced, and gave its first reading, an ordinance authorizing the railroad company to relocate and reconstruct its track and bridge on Broadway street in the city of Frankfort, Ky. At an adjourned meeting held on February 28, 1928, the ordinance was amended given its second reading, and adopted. Thereafter the terms of the ordinance were accepted by the railroad company, and the work of relocating and reconstructing its track and bridge on Broadway street was begun and continued until completed some time in 1929. When its track was relocated, it was constructed nearer the property to which William Hutcherson had accepted a deed from S. T. Marcus and wife, on the 27th day of March, 1928, when he began, and continued, to occupy it as a residence. In 1931, Hutcherson filed this action in the Franklin circuit court, charging that, when relocated and reconstructed, its bridge and track were placed 25 or 30 feet nearer his property, and that the approaches to the bridge were 6 feet higher than were the old ones, and that the east approach was directly in front of his property, of solid concrete, and about 30 feet in height; that his passway in front of his property, leading over the bridge and to other parts of the city and county to the state highway, was destroyed; that his way of ingress and egress was materially obstructed; that the view from his property was entirely obstructed, as well as the circulation of air, light, and vision which he enjoyed before the new construction. He charges that, on account of the construction of its track and bridge, "cinders, smoke, steam, soot, dirt," etc., from the engines and trains, have been greatly increased and thrown on his property in much greater quantities than before; that the noise, vibration, and jars from the engines and trains have greatly increased and permanently injured his property. He claimed temporary damages alleged to have been sustained during the progress of the work, but so much of his petition as related thereto was on his motion dismissed, and it is not now here involved.

The railroad company traversed the allegations of the petition, and further alleged that, at the time Hutcherson purchased the property, and prior thereto, it was known to the plaintiff and his vendors and to the public generally that the proposed reconstruction and realignment of its track and bridge on Broadway street would be materially changed and removed from their then position, a distance of approximately 22 feet southward toward his property, and that the track would be raised approximately 4 1/2 feet higher opposite his property. Issues were joined by appropriate pleadings, and, on a trial by a jury, a verdict was returned adverse to Hutcherson, and a judgment accordingly entered, from which he appeals.

The evidence respecting the issue as to the injury to his property resulting from the reconstruction and realignment of the track and the bridge is conflicting. It is very clear that it is sufficient to support a verdict for either Hutcherson or the railroad company, but, under the prevailing rule of practice, this court on such ground cannot interfere with it. Keyser v. Damron, 159 Ky. 444, 167 S.W. 381; Price Brothers v. City of Dawson Springs, 190 Ky. 349, 227 S.W. 470; Johnson v. Taylor, 245 Ky. 247, 53 S.W.2d 550. Where the evidence is conflicting and the verdict is not clearly against the preponderance of the evidence, or the court cannot say the jury was swayed by improper motives, this court will not disturb it. Barren Fork Coal Co. v. Cogar Grain & Coal Co., 225 Ky. 270, 8 S.W.2d 399; Norton Coal Mining Co. v. Wilkey, 232 Ky. 539, 23 S.W.2d 942. The number of witnesses in behalf of Hutcherson exceeds those testifying for the railroad company, but this fact does not authorize this court to interfere with the verdict of the jury. Gee v. Cowherd, 197 Ky. 460, 247 S.W. 364; Scanlon-Thompson Coal Co. v. Lick Branch Coal Co., 243 Ky. 100, 47 S.W.2d 1007. As to the question of general knowledge of the public and the knowledge of Hutcherson that the railroad company was going to reconstruct, realign, and move its track nearer the property of Hutcherson, the evidence is not so conflicting. Hutcherson admits that he had some information of the intention of the railroad company to relocate and realign its bridge and track on Broadway street, but did not believe it. At the time the ordinance was pending before the city council, in February, 1928, the citizens owning and occupying property adjacent to, and in the vicinity of, that conveyed to Hutcherson on March 27, 1928, congregated at the time and place of the meeting of the city council and vigorously protested to the council, while in session, against the enactment of the ordinance authorizing the reconstruction and realignment of its track by the railroad company and the approaches to the bridge nearer their property. Before Hutcherson purchased the property, the ordinance had been introduced, so protested against, received its first reading, and published in the State Journal, a paper of large and general circulation in the city of Frankfort and Franklin county, in its issue of February 28, 1928. At that time the railroad company's track and structure existed in the street immediately in front of Hutcherson's property, and the purpose of the ordinance against which the protest was being made was to authorize the removal and relocation in the street of the roadbed, track, and bridge nearer the property. Section 14 of the Bill of Rights and section 242 of the Constitution of Kentucky abolish the requirement of direct physical injury to property in order to establish a claim for damage for the construction of a railroad track in a street of a city. City of Henderson v. McClain, 102 Ky. 402, 43 S.W. 700, 19 Ky. Law Rep. 1450, 39 L. R. A. 349, 39 L. R. A. 403; Chesapeake & O. R. Co. v. May, 157 Ky. 708, 163 S.W. 1112; City of Louisville v. Kaye, 122 Ky. 599, 92 S.W. 554, 29 Ky. Law Rep. 116; Jeffersonville Madison & I. R. Co. v. Esterle, 13 Bush, 667; Maysville & B. S. R. Co. v. Connor, 29 S.W. 344, 16 Ky. Law Rep. 635; Elizabethtown, L. & B. S. R. Co. v. Walton, 9 Ky. Law Rep. 243; Chesapeake & O. Ry. Co. v. Smith, 51 S.W. 12, 21 Ky. Law Rep. 175; Louisville & N. R. Co. v. Lambert, 110 S.W. 305, 33 Ky. Law Rep. 199.

The measure of recovery in such case is the difference between the fair market value of the property claimed to have been injured, just before it is generally known that the railroad track will be constructed in a street,...