St. Louis, K. C. & C. Ry. Co. v. North

• Decision Date: 29 May 1888
• Citation: 31 Mo.App. 351
• Parties: ST. LOUIS, KANSAS CITY & COLORADO RAILROAD COMPANY, Appellant, v. MARTHA F. NORTH, Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 351

ST. LOUIS, KANSAS CITY & COLORADO RAILROAD COMPANY, Appellant, v. MARTHA F. NORTH, Respondent.

Court of Appeals of Missouri, St. Louis.

May 29, 1888

Appeal from the Franklin Circuit Court, HON. RUDOLPH HIRZEL, Judge.

Reversed and remanded.

JOHN C ORRICK, for the appellant: The burden was on the plaintiff the St. Louis, Kansas City & Colorado Railroad Company, and it had the right to open and close the case; the ruling of the court below in this regard was error. Const. of Mo., art 2, sec. 21; Rev. Stat., sec. 896; Railroad v. Ridge, 57 Mo. 599; Almeroth v. Railroad, 13 Mo.App. 91; McReynolds v. Railroad, 106 Ill. 157; Whart. on Evid., sec. 357; Neff v. Cincinnati, 32 Ohio St. 215; Ins. Co. v. Penna, 16 Ohio 324; Geach v. Ingall, 14 M. & W. 385; Ashby v. Bates, 15 M. & W. 589; Huntington v. Carkey, 33 Barb. 218; Young v. Highland, 9 Gratt. 16; City v. Frank, 9 Mo.App. 579; 1 Arch. Prac. 385. The court erred in its instruction number three, given at the instance of defendant, wherein it told the jury that it might consider the ordinary danger of injuries by fire created by the construction and operation of plaintiff's road so far as they might believe such danger lessened the value of the land. Such damages, if any, are too remote, and should not have been considered by the jury. Parrot v. Railroad, 10 Ohio St. 624; Proprietors v. Railroad, 10 Cush. 385; Turnpike Co. v. Railroad, 11 N.J. Law, 314; Rodemacher v. Railraad, 41 Iowa 297; Railroad v. Lazarus, 28 Penn. 203. The judgment in this case should be reversed because F. A. North, representative of the defendant, who was present with the jury when they viewed the premises sought to be condemned, violated the order of the court, and attempted, by his conversation with the jury, to influence their verdict.

CREWS & BOOTH and MARTIN, for the respondent.

OPINION

PEERS J.

This is an action under the statute to condemn certain lands of the defendant for the use of the plaintiff in constructing its railroad track through Franklin county, Missouri.

On the presentation of the petition the court appointed commissioners who, after viewing the land, assessed the damages at $257.66. To this report and assessment the defendant filed her exceptions, which the court sustained, and the matter was thereupon submitted to a jury.

This case is very similar to the one against F. A. North by the same plaintiff (31 Mo.App. 345), the issues and questions in each being the same with this exception: On the trial of this cause, the court, by consent of both parties, instructed the jury to " view the land," and placed them under the care of a deputy sheriff for that purpose, instructing them as follows:

" The sheriff will take you to-morrow morning to view the lands of Martha F. North, through which the St. Louis, Kansas City and Colorado Railroad Company has obtained a right of way and built the railroad. You will examine the lands of said Martha F. North and also the right of way, embankment, and tracks of the Colorado Railroad, with the view to ascertain the value of the land taken by the railroad as a right of way and the damage done to the whole tract of land by reason of said right of way and the construction of said railroad. You will also examine the location and lay of the land and the quality and value of all of said land so far as you can ascertain the same by simply viewing it. You will be shown the lands of defendant, Martha F. North, and its boundary lines, and also plaintiff's right of way, by a witness of plaintiff and one witness of defendant. You will not allow these witnesses nor any one else to speak to you about the damages, nor will you allow any one to influence your minds. You are not to decide this case from what you see on or about the land and right of way, but you are sent there to enable you to better understand the evidence introduced after your return. You must leave your minds free and unbiased and you must not speak about the merits of the case even among yourselves. After viewing the lands and right of way as above referred to, you will at once return to court with the sheriff and you will then try the cause upon the evidence which will be introduced and the law to be declared by the court, when your view and appraisement of the land will assist you in weighing the evidence and to arrive at a correct conclusion."

Pursuant to this order the sheriff, together with one Eckert representing the plaintiff, and F. A. North acting for the defendant, repaired to the land, and while viewing the same Mr. North called the attention of the jury to the lay of the land, and especially to a certain farm-crossing, using the words: " Now you can see for yourselves that this is the only place that a crossing could be made." The jury returned into court and after hearing the evidence returned a verdict for defendan...