St. Louis, I. M. & S. Ry. Co. v. Hall

• Decision Date: 21 March 1903
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HALL.
• Court: Arkansas Supreme Court

74 S.W. 293

ST. LOUIS, I. M. & S. RY. CO. v. HALL.

Supreme Court of Arkansas.

March 21, 1903.

Appeal from Circuit Court, Pope County; William L. Moose, Judge.

Action by W. C. Hall against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The appellee sued the appellant for $200, the alleged value of grass upon 33 acres of land standing thereon, alleged in his complaint to have been destroyed by fire started by a spark from a defective engine drawing an excursion train going in an easterly direction over the track of the railway of appellant on the 22d day of August, 1899, in the county of Pope, in the state of Arkansas. The appellant answered the complaint, and specifically denied each allegation in the complaint. The appellee, W. C. Hall, testified in his own behalf that he did not see the fire start; that he had the permission of his wife, who owned the land on which the grass was, and which was about 35 acres, to fence the land and use it for a meadow; that it was covered with ordinary wild grass and wild clover, which he intended to mow; that there were weeds upon the knolls, and he thought that he could have gotten 25 or 30 tons of hay off the field. He thought he was damaged at least $200 by the fire burning the grass. He says that he had no contract with his wife about the meadow: "I told her [he testified] that I wanted to make a meadow out of the land, and she said: `All right. Take it and fence it, and have it for your own use as long as you want it.'" He was asked: "How much were you damaged by that fire? Answer. I was damaged at least $200. Ques. How many cattle could you have gotten to pasture on that place, had it not been burned off? Ans. Fifty head." J. B. Evans was allowed to testify as follows: "Ques. What would it have been worth for pasturage? Ans. $65 or $75. Not less than that." All this was over the objection of the defendant, to which it excepted.

Lovich P. Miles and Dodge & Johnson, for appellant.

HUGHES, J. (after stating the facts).

Generally "a witness is never permitted to estimate the amount of his damage for the doing or not doing of a particular act, which a party has sustained thereby." This is the province of the jury, and a witness cannot be allowed to usurp it. Railway v. Haynes, 47 Ark. 501. The rule generally is that a witness should state facts, and the jury should find from the facts in evidence what the damages are, if any. Railway v. Ayres, 67 Ark. 375, 55 S. W. 159; Sedgwick on Damages, § 1293; Railway v. Jones, 59 Ark. 110, 26 S. W. 595; Lamson on Expert & Opinion Evidence, p. 448.

The appellant contends that the plaintiff's claim is within the statute of frauds. But the statute was not pleaded, and, had it been, could not have availed the defendant. "A third party cannot, in a case where his own obligations growing out of the existence of the contract in question are concerned, deny the obligation of the contract upon the party who was to be charged thereby, or take any benefit of the protection which such party could claim in an action brought upon it against himself." Section 135, Browne on Statute of Frauds.

What right had the plaintiff to sue? He was a tenant at will. Though four months over one year had elapsed from the time he took possession of the land...