Leroy & W. Ry. Co. v. Anderson

• Decision Date: 10 May 1889
• Citation: 21 P. 588,41 Kan. 528
• Court: Kansas Supreme Court
• Parties: THE LEROY & WESTERN RAILWAY COMPANY v. R. A. ANDERSON

21 P. 588

41 Kan. 528

THE LEROY & WESTERN RAILWAY COMPANY v. R. A. ANDERSON

Supreme Court of Kansas

May 10, 1889

Error from Sumner District Court.

APPEAL by Anderson from an award of damages by commissioners appointed to condemn a right-of-way over his land for the Leroy & Western Railway Company. In his petition Anderson alleged that the railroad divided his farm into two parts that an embankment was thrown up on the right-of-way, and ditches were excavated on each side of the roadbed; that by reason of the embankments and ditches, communication between the different parts of his farm was prevented; that no crossing was put in over the right-of-way; and he claimed damages on account of the embankments and ditches, and the failure to make a farm-crossing, and generally for the taking of the right-of-way. To this petition the defendant filed a general denial. Trial by jury at the February term, 1887, and verdict and judgment for the plaintiff for $ 1,000. Defendant brings the case here.

Judgment affirmed.

Geo. R Peck, A. A. Hurd, and J. G. Egan, for plaintiff in error.

Lawrence & Ferguson, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The defendant requested the court to submit to the jury for their answers special questions. Four of the questions the court refused to submit, which are as follows:

"Q. No. 6. How much was the damage to the farm by reason of the necessity of crossing stock from one side to the other?

"Q. No. 7. How much damage to the land by reason of the inconvenience for farming and using and occupying such land, caused by the building of said railway through, over and across said land?

"Q. No. 8. How much damage to the land by reason of the ditches being cut on each side of defendant's road-bed along the line of said railway?

"Q. No. 9. How much damage to the land of the plaintiff by reason of the embankments being thrown up along the line of said defendant's railway?"

The plaintiff in error insists that these questions ought to have been submitted to the jury; that an issue was raised by the pleadings covering each of these questions, and that there was evidence offered to the jury upon each item of damage set out in the petition. Evidence was offered tending to establish all the allegations of the plaintiff's petition, but no evidence was offered giving in detail the items of damage covered by these four questions which the court refused to submit; and if these questions had been submitted to the jury there was no basis from which they might have determined the accurate amount of damage to be allowed by them on the separate items, as requested by these questions. It is the duty of the trial court to submit questions of fact that are raised by the pleadings and evidence; but where questions are asked to be submitted that are pertinent under the issues raised by the pleadings, yet no evidence has been offered from which the jury could intelligently or fairly answer them, such questions ought not to be submitted to the jury. The evidence in this case shows that plaintiff claimed damage for all of these special...