Louisville v. Sumner

• Decision Date: 02 March 1886
• Parties: Louisville, N. A. & C. Ry. Co. v. Sumner.
• Court: Indiana Supreme Court

106 Ind. 55

5 N.E. 404

Louisville, N. A. & C. Ry. Co.

v.Sumner.¹

Supreme Court of Indiana.

Filed March 2, 1886.

Appeal from Hamilton circuit court.

Kane & Davis, for appellant.

Moss & Stephenson, for appellee.

Mitchell, J.

On the fourteenth day of November, 1881, Green C. Sumner and wife conveyed a right of way, 66 feet in width, over two adjoining tracts of land, to the Louisville, New Albany & Chicago Railway Company. The deed recites that the conveyance was made in consideration of the payment of $200 and in further consideration of a covenant, on the part of the railway company, written in the deed, “to make a stock-pass under said road, and a farm-crossing over it, and to fence said strip, and further to locate and maintain a depot at the line between the above tracts.” On the seventeenth day of January, 1885, Sumner brought this suit to recover damages for alleged breaches of the covenants above recited. The breaches assigned are (1) that the railway company wholly failed and refused to establish and maintain a depot at the place designated; (2) that it failed and refused to erect and maintain fences, whereby the plaintiff had sustained damages in various ways specified. At the trial the court permitted the plaintiff to prove, as an element of damage, that two of his hogs had been killed by the cars, the animals having gone upon the track by reason of the failure of the defendant to fence its right of way over plaintiff's land. Evidence was admitted to show that animals had gone upon and trespassed on the plaintiff's land, and that plaintiff, by reason of the failure of the company to build the fence, had been deprived of the pasturage upon lands adjacent to the right of way. Evidence was also admitted to show that the plaintiff's farm was worth less than it otherwise would have been because of the failure to erect and maintain a depot at the point designated in the deed. A general verdict for the plaintiff was returned, assessing damages at $955. By answers to special interrogatories the jury returned the following items of damage:

+-----------------------------------------------------------------------------+
                ¦(1) The cost of erecting the fence,                                ¦-   ¦$250¦
                +-------------------------------------------------------------------+----+----¦
                ¦(2) Damages for failure to erect fence, embracing the following    ¦    ¦    ¦
                ¦items:                                                             ¦    ¦    ¦
                +-------------------------------------------------------------------+----+----¦
                ¦Hogs killed,                                                       ¦$ 25¦    ¦
                +-------------------------------------------------------------------+----+----¦
                ¦Loss of pasture, three years, $50 per year,                        ¦150 ¦    ¦
                +-------------------------------------------------------------------+----+----¦
                ¦Trespassing animals,                                               ¦30  ¦    ¦
                +-------------------------------------------------------------------+----+----¦
                ¦Total,                                                             ¦    ¦205 ¦
                +-------------------------------------------------------------------+----+----¦
                ¦(3) Failure to erect and maintain depot,                           ¦    ¦500 ¦
                +-------------------------------------------------------------------+----+----¦
                ¦Total,                                                             ¦    ¦$955¦
                +-----------------------------------------------------------------------------+
                

The record presents in various ways questions as to the correctness of the rule of damages, as applied by the court, for the failure to erect fences according to the stipulation in the deed. It is also claimed that the covenant contained in the deed by which the defendant agreed to erect and maintain a depot is void, as being against public policy.

It is argued that the measure of damages for the failure to erect the fence was the amount it fairly cost to erect it, and that the court erred in permitting the jury to hear and consider evidence of the value of hogs killed by the defendant's cars, the value of the use of pasture lands which plaintiff was prevented from using, and of damage sustained by trespassing animals entering upon lands adjacent to the track. The argument is that, upon the failure of the railway company to erect the fences within a reasonable time, it became the duty or the privilege of the plaintiff to erect them, and thus prevent the damages from being enhanced. While it is true the law imposes upon a party who is injured from another's breach of contract the duty of making reasonable exertions to render the injury as light as possible, it is equally beyond question that, where he whose duty it is primarily to do work necessary to fulfill a contract, and to prevent damage which may result from a failure, has equal knowledge of the consequences of non-compliance and opportunity to fulfill the obligation, he alone may be depended upon to perform the duty, and it will not avail him to say the injured party might have performed the duty for him, and thus lessened the damages. Chicago, etc., R. Co. v. Ward, 16 Ill. 522; Suth. Dam. 151.

The plaintiff had the right to depend on the defendant to perform its contract until it repudiated it, or until it became apparent that the railway company did not intend to execute it within a reasonable time. Upon the occurrence of either event, the plaintiff had the right to erect the fence himself, and call upon the defendant to refund the actual cost, and to reimburse him for such special damage as directly resulted from its failure to perform the contract. Myers v. Burns, 35 N. Y. 269;Hexter v. Knox, 63 N. Y. 561. The defendant, through its agent, having given assurance, when requested to perform its contract, that it would proceed to do so, it cannot be said that the plaintiff was not justified in relying upon the assurances so given, and, in reliance thereon, postponing the erection of the fences himself. It must be supposed that the defendant knew, when it made the contract, and in pursuance thereof exposed the plaintiff's farm to injury by throwing the fields open to the public, and rendering it hazardous for him to allow his own animals to pasture where they would be exposed to destruction by the defendant's trains, that special damage would result. Such damages must therefore have been within the reasonable contemplation of the parties when the contract was made. We think t...