St. Louis, B. & M. Ry. Co. v. Green

• Decision Date: 05 February 1916
• Docket Number: (No. 7055.)
• Citation: 183 S.W. 829
• Parties: ST. LOUIS, B. & M. RY. CO. et al. v. GREEN.
• Court: Texas Court of Appeals

183 S.W. 829

ST. LOUIS, B. & M. RY. CO. et al. v. GREEN.

(No. 7055.)

Court of Civil Appeals of Texas. Galveston.

February 5, 1916.

Appeal from District Court, Matagorda County; Sam'l J. Styles, Judge.

Action by George Green against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver. From a judgment rendered on a directed verdict for defendant Frank Andrews, and on a verdict for the plaintiff, the defendant railroad company appeals. Reversed and remanded.

Gaines & Corbett, of Bay City, and Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, for appellant.

LANE, J.

This suit was instituted by George Green against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver, on the 5th day of March, 1914, and for cause of action he alleges, in substance: That plaintiff is the owner of lot No. 12, in block 27, of the town of Bay City, Tex., upon which he had constructed a two-story dwelling house, expecting to make the same his home. That about the year 1904, the defendant company constructed its main line along First street in said town of Bay City, opposite plaintiff's property, and that in the latter part of the year 1912 the defendant company imposed an additional servitude upon said First street, by the construction of a side or switch track, and by such additional servitude destroyed the use of said First street. Plaintiff furthermore alleged that the tracks of the defendant company are elevated as much as three feet above the level of plaintiff's premises, creating a dam and obstructing the drainage of water, and causing the water from ordinary rainfall to be impounded, dammed up, and to stand upon the plaintiff's premises; further alleging that the defendant has failed to provide any means for the draining of water across or under its roadbed, to plaintiff's damage in the sum of $500. So much for the allegations against the defendant railway company alone. The plaintiff then alleges that both of the defendants use the said side track as a place to park locomotives at night, in close proximity to plaintiff's premises, creating offensive smells and odors, to plaintiff's damage in the sum of $1,000. Plaintiff then alleges that such use of said side track by both of the defendants has rendered his property uninhabitable, and has depreciated the value of the same at least one-half. The defendant railway company expressly denied that its roadbed was elevated as claimed, or that it caused the water from ordinary rainfall to be impounded and stand upon plaintiff's premises, and specifically denied that it parked or bedded locomotives in close proximity to the plaintiff's residence, or that such use of the street rendered the plaintiff's property uninhabitable. The defendant Frank Andrews furthermore expressly pleaded that on the 5th day of July, 1913, he was appointed receiver of the properties of said railway company, and up to said date he was in no way responsible for the acts of commission or omission complained of by plaintiff, or for any acts occurring during the time that said railroad was conducting its own business. The case was called for trial on the 28th day of January, 1915. The court charged the jury to find a verdict for the defendant Frank Andrews, receiver, and submitted for the consideration of the jury the question of the railway company's liability only, and the jury returned a verdict in favor of the plaintiff for $500 against the railway company, and judgment was duly entered thereon. From this judgment the St. Louis, Brownsville & Mexico Railway Company alone has appealed.

Appellee has filed no brief. We shall therefore dispose of the issues as presented by the brief of appellant.

The first assignment insists that the trial court erred in permitting the plaintiff to testify as to the sum expended by him in constructing his said house in 1909, because the acts of defendant of which complaint is made did not occur until some time in 1912, about three years after said house was built, and therefore such testimony was wholly insufficient to establish the market value of the property of plaintiff immediately before, or immediately after, the acts complained of.

Plaintiff, George Green, testified:

"I have a five-room two-story frame house I built there in 1909 after the July storm. I think I built that house about October, 1909. The house cost me $1,100.00; it is weather boarded outside and ceiled and papered inside. * * * I did have my house painted, but they have thrown oil on it and it turned black, the color of oil. * * * That is my home where my family and I live. I have a wife and children."

It will be noted that the assignment insists only that the testimony complained of is insufficient to establish the market value of the property immediately before or immediately after the acts of defendant complained of, and not that the testimony is immaterial and irrelevant to the issues being tried, and hence the last question is not presented for our consideration. However, while we agree with appellant that such testimony is not sufficient to establish the market value of the house of appellee immediately before or immediately after the acts complained of, we do think such testimony was admissible, when considered together with other testimony, hereinafter set out, to assist the jury in determining the market value of said property immediately before and after the acts complained of, and, so believing, we overrule the first assignment.

Assignments Nos. 2 and 3 insist that the trial court erred in admitting the testimony of the witnesses P. T. Swansey and C. M. Magill, hereinafter set out, because the same was immaterial and irrelevant, and does not show or tend to show the market value of plaintiff's property immediately before or immediately after the acts complained of. P. T. Swansey testified:

"I live in Bay City * * * and have been living here since 1901, and I am acquainted with property values in Bay City to some extent, and was so acquainted in the fall of 1912. I am acquainted with the property of the plaintiff, George Green, down at the Brownsville Railroad in the `south end' of the town of Bay City, and was acquainted with the value of the property in that locality, in a general way, in 1912. Yes; I knew the market value of property in that locality at that time, as I bought and sold property down there. * * * George Green's property * * * between the 1st of September and 21st of December, 1912, before the switch in question was put in there, that lot, without any improvements, I think was worth $250. I could not say just what the house on that lot is worth, as I have never been inside of it, and only know it from the outside appearance, but I should judge that house, being a two-story house, and if it is ceiled and papered inside, would cost somewhere about $800 to build. I have worked at the carpenter's trade a good deal, and I judge, from the general outside appearance of that house and the cost of material during that time that the house was built, that $800 would be a fair valuation of the cost of the house to build it, including the cost of lumber, work, and everything. I heard George Green testify regarding the location of that side track there, and am acquainted with it, as to how close the side track runs to his lot, etc.; and, in view of the conditions as they really exist down there now, I would not hardly want that property at any price at all. By reason of this track being put in there, and these other things, I think that George Green's property has depreciated in value 50 per cent. In saying that this property has depreciated in value about 50 per cent. I had in mind the fact that the railroad company parks live locomotives to the number of two or three at a time and keeps steam up in them, opposite the house, which engines emit noxious...