Pascal v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 06 June 1913
• Citation: 141 N.W. 920,160 Iowa 484
• Parties: J. L. PASCAL, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

141 N.W. 920

160 Iowa 484

J. L. PASCAL, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

June 6, 1913

Appeal from Pocahontas District Court.--HON. A. D. BAILIE, Judge.

PLAINTIFF sued to recover damages for the partial destruction of thirty-one acres of meadow and hay land, and for rendering the same of less value for said purposes; and in a second count for burning twenty tons of tame hay in stack, alleged to have been negligently caused by sparks from one of defendant's engines. Plaintiff claimed $ 300 on both counts. There was a trial to jury and a verdict and judgment for plaintiff for $ 230. Defendants appeals.

Affirmed.

J. L Parrish, Benton B. Hall, J. H. Johnson, and Allen & Atkinson for appellant.

J. M Berry, for appellee.

OPINION

PRESTON, J.

I.

Three pieces of sod, from plaintiff's meadow, each less than a foot square, were introduced in evidence, over defendant's objection. The objection was that they were inadmissible because they could not be preserved and transmitted to the Supreme Court. It is not necessary to decide the point for two reasons; no reason is given why the sod could not be preserved and certified. Exhibits of larger bulk have been sent here. The only reason which occurs to us is that the dirt might crumble from the roots; but that could be avoided by making a box for each. In this case there could be no object in our seeing these exhibits. Some of the cases cited proceed on the theory that, if the sufficiency of the evidence is challenged on appeal, the court should have all the evidence before it; but defendant has not assigned as error the sufficiency of the evidence to sustain the verdict.

II. Defendant requested that the jury be allowed to view the meadow, and this request was denied. The reason for refusing is not shown. It was so much a matter of discretion that we should not reverse for this.

III. The court adopted as the rule for the measure of damages the difference between the value of the meadow immediately before the fire, and its value immediately after. The instructions were on this theory. In this class of cases there is some difficulty in formulating a general rule by which all cases may be governed. Appellant contends that the proper rule is as announced in Krejci v. Railway, 117 Iowa 344, which is that: "When grass land or meadow, as distinguished from hay or grass, is destroyed, the rule of damage as adopted by this court is the cost of restoring it to its former condition, and its rental value as such until restored, and if growing grass is destroyed plaintiff may have in addition the value of this grass."

In the case at bar the fire occurred the latter part of February and the only damages claimed were for injury to the meadow or as grass land. Defendant asked two of its witnesses this question: "Q. What do you say would be the reasonable cost of restoring that meadow and reseeding it in the condition which would compare with the remainder of the meadow which was...