Root v. Butte, A. & P. Ry. Co.

• Decision Date: 06 December 1897
• Citation: 51 P. 155,20 Mont. 354
• Parties: ROOT v. BUTTE, A. & P. RY. CO.
• Court: Montana Supreme Court

51 P. 155

20 Mont. 354

ROOT v. BUTTE, A. & P. RY. CO.

Supreme Court of Montana

December 6, 1897

Appeal from district court, Deer Lodge county; Theodore Brantley Judge.

Action by S.D. Root against the Butte, Anaconda & Pacific Railway Company for damages resulting from the construction of defendant's road in front of plaintiff's property. From a judgment for plaintiff, and an order denying a new trail, defendant appeals. Reversed.

Plaintiff and respondent sued the defendant and appellant railroad for damages, and alleged that the defendant constructed and operated its line of railroad and its steam locomotive and cars over and along Front street, in the city of Anaconda, so as to injure and greatly damage plaintiff in the value of his property, and that by reason of the construction and operation of its said railway, side tracks, switches, and the use of steam locomotives and cars thereon, plaintiff's property greatly depreciated in value for any purpose whatever. It was further alleged that, by reason of the premises aforesaid, plaintiff suffered on account of the depreciation in value of his premises by the wrongful acts of the defendant, and was damaged in the sum of $3,000. The defendant denied all the material allegations of plaintiff's complaint. The case was tried to a jury, who found for the plaintiff in the sum of $900. Judgment was entered on the verdict. Defendant appeals from the judgment and an order denying a new trial. It appeared on the trial of the case that plaintiff owned lot 12, block 5, in the city of Anaconda, and that the said lot was situated on the corner of Oak and Front streets. The street upon which plaintiff's property was situated was occupied principally by saloons lodging houses, boarding houses, and hotels. Plaintiff's evidence tended to show that the defendant's railroad ran through the street about 46 feet distant from his house, used as a lodging house. Plaintiff was permitted to testify against the objection of the defendant, to the noise occasioned by the frequent passing of trains, and to the shaking of the windows in his house, to the ringing of bells and sounding of whistles, and to the difficulty with which teams could turn in the space in front of his house, and to the diversion of travel, after the building of the railroad from Front street to other streets. It was admitted that the railroad was constructed and operated along Front street by virtue of an ordinance of the city of Anaconda giving the defendant the right to construct and operate its railroad along said street.

J. K. McDonald, Wm. Scallan, W. W. Dixon, and W. B. Rodgers, for appellant.

Sawyer & Walsh, for respondent.

HUNT J. (after stating the facts).

Under a general allegation of damages the plaintiff may prove and recover only general damages; that is, such damages as naturally and necessarily result from the acts or omissions complained of. Phil. Code Pl. § 424. The law implies general damages from certain facts stated, and where there is such an implication there need be no allegation of damages, beyond stating the amount claimed. But if a plaintiff is entitled to damages different from, or besides, general damages implied by law, he should plead them. "He may," writes Phillips, a careful and very recent author on Code Pleading (section 425), "have suffered injury which, though the natural consequence, is not the necessary consequence, of the wrong complained of, and for which he cannot recover under an ad damnum. In such case, in order that the court may be advised as to the scope of the action, and to give the defendant notice of what will be subjects of proof at the trial, the facts out of which such special damages arise are required to be specially pleaded in the complaint." Bliss, Code Pl. § 297(b), lays down the rule in substantially similar language, based upon a like reason, that if a plaintiff is entitled to damages, even though the natural yet not the necessary, consequence of the wrong done, he must specially state his loss, so that the court may see its character, and so as to prevent the defendant from being surprised. To like effect are Boone, Code Pl. § 18, and Steph. Pl. 417. 1 Suth. Dam. P. 763, says: "Under a general allegation of damages, the plaintiff may rove and recover those damages which naturally and necessarily result from the act complained of,--for these damages the law implies will proceed from it. These are called 'general,' as contradistinguished from 'special,' damages, which are the natural, but not the necessary, consequence. Special damages are required to be stated in the declaration, for notice to the defendant, and to prevent surprise at the trial." These rules of pleading should have been applied upon the trial of the case, and the court erred in overruling the objection of the defendant's counsel to the introduction of evidence as to all such elements of damages as the blowing of whistles, ringing of bells, noises from engines and trains, the blowing off of chaff or smoke, vibration, inability to converse during the time trains were passing, as to the practicability of turning teams on the streets adjacent to plaintiff's property, and as to the diversion of travel from Front to other streets. It is not a natural and a necessary result of the operation of a railroad, that, in lawfully occupying a street in a city, premises 46 feet distant from the...