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

• Decision Date: 08 April 1893
• Citation: 22 S.W. 170
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. LYMAN.
• Court: Arkansas Supreme Court

22 S.W. 170

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

Supreme Court of Arkansas.

April 8, 1893.

Appeal from circuit court, Nevada county; Rufus D. Hearn, Judge.

Action by Fox Lyman against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the destruction of plaintiff's crops, alleged to have been caused by an embankment constructed by defendant, which backed water on the crops. Judgment was entered on a verdict in favor of plaintiff for $5,377.50, and defendant appeals. Reversed.

The court charged the jury on the measure of damages as follows: "If the jury find for plaintiff, the measure of damage will be the actual cash value of the crops destroyed, at the time of the destruction, if the jury find any such to have been proven, at the time of the destruction, with interest thereon at the rate of six per cent. per annum from the date of such destruction."

Dodge & Johnson, for appellant. Scott & Jones, for appellee.

MANSFIELD, J.

The complaint alleges that the growing crops of the plaintiff on two plantations situated on the south bank of Red river were destroyed on the 9th day of May, 1888, by water backed onto them by the defendant's embankment across the river bottom, and that the injury thus sustained resulted from the negligence of the defendant in constructing the embankment without sufficient openings to permit the escape of the water. The answer denies the negligence charged, and denies that the crops were destroyed in the manner stated in the complaint. The cause was tried by a jury, and the company appeals from a judgment for the amount of their verdict.

1. Taking the grounds assigned in the motion for a new trial in the order in which they have been presented by the argument of counsel, the first is that the court erred in permitting Mrs. Cloud, the owner of one of the plantations, to testify that in 1884 she complained to the defendant's road master that the railway embankment was holding the water upon her lands, and that it needed more openings; and that he replied by saying that, if she would procure a petition from the citizens, he would send it, for her, to the headquarters of the company. The only ground on which the appellee's counsel justify the admission of this testimony is that it proved a notice to the defendant to remove the alleged nuisance. But the pleadings made no issue as to whether such notice was given, and, if that question had been raised on the trial, it does not appear that the road master was an agent of the company to whom the notice could have been properly given. The conversation between himself and Mrs. Cloud was therefore incompetent, and should have been excluded.

2. Under the ruling next complained of, the plaintiff was permitted to give in evidence his opinion as to the value of the crops at the time of their destruction, and to state as the basis of his valuation the usual yield of the lands in crop seasons similar to that of 1888. The witness being a farmer, his opinion was admissible to prove the value of the crop, and it was proper to permit him to state the facts from which his conclusion was arrived at, as these would aid the jury in determining whether his estimate was correct. Phillips v. Terry, 3 Abb. Dec. 607. While the damages recoverable could not exceed the actual value of the crops at the date of the injury, with legal interest, it was not improper that the jury, in estimating that value, should consider the probable value at maturity, if they believed from the evidence that the crops would have matured but for their loss in the manner alleged in the complaint. This view is not in conflict with the decision in Yarborough's Case, determined at the last term. Railway Co. v. Yarborough, 56 Ark. 581, 20 S. W. Rep. 515. In that case there was no evidence from which the jury could have found that the crops would have matured if they had not been destroyed by water backed upon them by the railway, and the judgment was reversed because it was obvious that the damages recovered were assessed on the basis of the value the crops would have had at maturity. But in the present case there was testimony from which the jury might have found that the lands were not overflowed at all, directly from the river, and that the crops might have matured if they had not been destroyed by the backwater.

3. The only part of the court's charge excepted to is embraced in its second instruction, and the rule of damages which that instruction states was approved in the case cited above.

4. The court refused to give certain instructions requested by the defendant, numbered, respectively, 12, 13, 14, 17, and 18. There was no error in rejecting either of...