Leroy & W. Ry. Co. v. Hawk

• Decision Date: 07 July 1888
• Citation: 18 P. 943,39 Kan. 638
• Court: Kansas Supreme Court
• Parties: THE LEROY & WESTERN RAILWAY COMPANY v. RACHEL A. HAWK

18 P. 943

39 Kan. 638

THE LEROY & WESTERN RAILWAY COMPANY v. RACHEL A. HAWK

Supreme Court of Kansas

July 7, 1888

Error from Sumner District Court.

APPEAL by Hawk from the report of commissioners to condemn certain lands for a right-of-way for the Le Roy & Western Railway Company. Judgment for the plaintiff for $ 700, at the November term, 1886. The defendant company brings the case here. The opinion states the facts.

Judgment affirmed.

W. P Hackney, for plaintiff in error.

Haughey & McBride, for defendant in error.

OPINION

JOHNSTON, J.:

This action was brought to the district court of Sumner county on appeal by Rachel A. Hawk from the report of the commissioners appointed by the judge of the district court of that county to condemn a right-of-way for the Le Roy & Western Railway Company through a portion of Sumner county and across an eighty-acre tract of land belonging to Rachel A. Hawk. The commissioners had reported that appellant would suffer damages by reason of the construction of the road through her premises, in the sum of $ 164; and at a trial, which was had with a jury on December 18, 1886, there was a verdict assessing the appellant's damages at $ 700. A motion for a new trial was overruled, and judgment was entered upon the verdict. The railway company has removed the cause to this court, and asks for a reversal upon three grounds: 1. Error in refusing to submit certain special questions; 2. In permitting incompetent witnesses to testify as to the value of the land; 3. In giving improper instructions to the jury.

The court refused to submit the question: "How much was the damage to the farm by reason of the water in the ditch thereby causing the adjacent land belonging to the plaintiff to cave in?" The question was not warranted by the testimony offered in the case, and its refusal was not erroneous.

The court was further requested to submit to the jury the question: "What damage resulted to the farm by reason of the scaring of stock by the company's cars?" But this was properly denied, as the jury were charged that they had no right to take into consideration in their estimate of damages any risks which the appellant might incur in the way of scaring her stock and teams, as such damages were speculative only.

The third question refused, and about which complaint is made was: "What are the several elements or sources of the damages which make up the aggregate to the answer to special question No. 10, and how much of said aggregate is made up by each of said elements or sources of damage?" Finding No. 10, referred to, is: "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?" Ans.: "$ 380." This method of questioning a jury would serve no good purpose, and is not permissible. A party desiring special findings should submit particular questions instead of general ones, and should not leave the jury to analyze and separately state the constituent elements of the damage suffered. The jury may be interrogated as to any particular element about which there was testimony offered, but to...