Kansas City & Omaha Railroad Co. v. Rogers
| Decision Date | 20 May 1896 |
| Docket Number | 6601 |
| Citation | 67 N.W. 602,48 Neb. 653 |
| Parties | KANSAS CITY & OMAHA RAILROAD COMPANY v. OLIVER C. ROGERS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Adams county. Tried below before BEALL, J.
REVERSED AND REMANDED.
M. A Hartigan, John Hartigan, and M. A. Reed, for plaintiff in error.
A. H Bowen, contra.
Rogers sued the railroad company, charging that in September, 1891 it negligently omitted to keep its right of way free from combustible materials, and permitted large quantities of grass and weeds to accumulate upon its right of way near the premises of the plaintiff, and that the servants of the railroad company negligently set fire to the grass, weeds, and combustible materials accumulated on the right of way and negligently permitted said fire to pass upon the lands of the plaintiff, whereby 204 forest trees, of the value of $ 300, were burned and destroyed. The answer amounted to a general denial. There was a verdict and judgment for the plaintiff for $ 200, which the railroad company seeks to reverse.
It was established, without contradiction, that two employes of the railway company were engaged in burning the grass and weeds from the right of way; the fire escaped from their control and spread upon plaintiff's land, burning his trees. The plaintiff was asked to state to the jury what, in his opinion, would be the fair and reasonable value of the trees immediately before the fire. An objection to this question was overruled, and he answered, "About a dollar apiece." On cross-examination he was asked to state the basis of this valuation, and he answered: "Because they were worth that to me as ornamental trees." The defendant then moved to strike out all his testimony in regard to value, because not based on proper considerations. It was held in Fremont, E. & M. V. R. Co. v. Crum, 30 Neb. 70, 46 N.W. 217, that in such a case the measure of damages is not the depreciation in the value of the land because of the destruction of the timber, but is the amount of damages suffered by the timber by reason of the fire. On the trial both sides proceeded upon the assumption that this rule of damages was correct. The only difference in the two cases is that in the Crum case the trees seem to have been of natural growth, while in the case at bar they had been planted and cultivated. It is suggested in the briefs that this difference may for some purposes mark a distinction in the rule, but we cannot perceive it. The contention of the defendant in regard to the evidence referred to is that the answers of the witness on cross-examination showed that his estimate of the value was not within the rule in the Crum case. It was, however, said in the Crum case that the inquiry should be as to the value of the trees as standing timber, and not the market price for transplantation as shade or ornamental trees. The reason given in the opinion was that the latter valuation would require an inquiry into the cost of transplanting and transporting, and would depend upon the existence of a sufficient market for such trees. If the market value is not a proper test, and if their value must be determined as standing timber, then it follows that it is not only proper, but absolutely necessary to consider their value with reference to the land in the situation in which they stood, and, so viewed, the witness' testimony was material and competent, and the court properly refused to strike it out. If we should hold that the value must be estimated without regard to the market value for the purposes of transplanting, as the Crum case holds, and also without regard to the value of the trees as they stood with reference to the farm and as affecting its value, we would practically hold that no value could be established, and we should certainly be attempting to create distinctions imperceptible without the use of some instrument of high magnifying power. In the case of Bailey v. Chicago, M. & St. P. R. Co., 3 S.D. 531, 54 N.W. 596, the supreme court of South Dakota follows the rule of damages laid down in the Crum case, and in the course of the opinion holds that evidence of a character similar to that here complained of is irrelevant, but the question was not presented by the record in such a manner as to permit a reversal, and Bennett, P. J., dissented upon this point in a forcible and, to my mind, a most convincing opinion.
The court, at the request of the plaintiff, gave the two following instructions:
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Kan. City & O. R. Co. v. Rogers
... ... Syllabus by the Court.1. In an action against a railroad company for setting out fire upon its right of way, which spread to the lands of the plaintiff, and ... Rogers against the Kansas City & Omaha Railroad Company. There was a judgment for plaintiff, and defendant brings error ... ...