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

• Decision Date: 29 May 1888
• Citation: 31 Mo.App. 345
• Parties: THE ST. LOUIS, KANSAS CITY & COLORADO RAILWAY COMPANY, Appellant, v. F. A. NORTH, Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 345

THE ST. LOUIS, KANSAS CITY & COLORADO RAILWAY COMPANY, Appellant, v. F. A. 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; Neff v. Cincinnati, 32 Ohio St. 215; Ins. Co. v. Penna, 16 Ohio 324; Geach v. Ingall, 14 M. & W. 95; 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; Wharton on Evidence, sec. 357; 1 Archibold's Prac., 385. The court erred in its instruction numbered two, given at the instance of the defendant, wherein it told the jury that it might consider the ordinary danger of injury by fire created by the construction and operation of plaintiff's road so far as they might believe such damage lessened the value of the land. Such damages, if any, are too remote and should not have been submitted to the jury. Proprietors v. Railroad, 10 Cush. 385; Turnpike Co. v. Railroad, 11 N.J. Law, 314; Rodemacher v. Railroad, 41 Iowa 297; Railroad v. Lazarus, 28 Penn. 203. The court erred in giving the instruction numbered three for the defendant, wherein it instructed the jury that in estimating the defendant's damages they should consider defendant's right to go upon said strip of land comprising plaintiff's right of way at any other place than such farm-crossings as completely cut off by the condemnation of said strip. It appears from the evidence that a farm-crossing had been established for defendant, under a high trestle, which was satisfactory to defendant, but it was claimed that, inasmuch as plaintiff could change the crossing and close it up, the contingency of the exercise of this power was an element of damages to be considered by the jury. In the first place we insist that the instruction is not the law. The plaintiff has no power to establish farm-crossings and then remove or close them and establish them at improper or inconvenient places. Mills on Em. Dom. [2 Ed.] sec. 213. Again, if such power existed, the possible exercise of it at some future time from which damage might accrue to the defendant is too remote to constitute in this case an element of damage. The court erred in overruling plaintiff's objection to the following question propounded to witnesses: " Did you take into consideration the fact that railroads, when constructed and put into operation in the ordinary course for the transportation of cars by steam, make an increased danger of fire?" This evidence was incompetent and immaterial. An increased danger of fire is not an element of damage proper for the consideration of the jury.

CREWS & BOOTH and MARTIN, for the respondent.

OPINION

PEERS J.

This is an action under the statute seeking to condemn certain lands in Franklin county, the property of defendant, for the use of plaintiff as its right of way. The petition was filed on May 24, 1886, in the Franklin county circuit court, and is in the usual form, concluding with the prayer for the appointment of three disinterested freeholders, residents of Franklin county, to ascertain and assess the damages. On June 5, 1886, the court by proper entry of record made an order appointing the commissioners, as asked by the petition. Their report was filed on the fourteenth of the same month, by which they allowed defendant $275.22 as his damages.

On the twenty-eighth day of June, 1886, defendant filed his exceptions to said report, which were sustained, and the report of the commissioners set aside, whereupon the court ordered the question of compensation to be tried by a jury.

The defendant assumed the burden by leave of court and went forward with the introduction of evidence as to his damages, and proceeded to open and close the case to the jury. To this the plaintiff objected and assigned the same as error.

The defendant introduced evidence showing the location of the line through his land, the distance and width of said line, and the further fact that the plaintiff had actually entered upon and occupied the land, and constructed and put in operation its road over and across the same. The defendant also introduced a number of witnesses to show that he had sustained damages in the sum of eight hundred dollars; and also offered evidence tending to show that, by the erection and maintenance of said railroad, that part of his land not taken for right of way was subject to increased danger of injury and damage by fire.

To the admission of this evidence plaintiff objected, and assigns the same as error.

The plaintiff introduced the evidence of three witnesses whose testimony tended to show that the damage to defendant was from two hundred and sixty-five to three hundred dollars. On cross-examination these witnesses were asked: " Did you take into consideration the fact that railroads, when constructed and put in operation in the ordinary course for the transportation of cars by steam, make an increased danger of fire?" This was objected to by the plaintiff, and the objection overruled by the court, which ruling is also assigned as error.

Quite a number of instructions were given for the defendant, but we need not incorporate them in this opinion. The first, second, and third were objected to.

On behalf of plaintiff, the following instructions were refused:

" The court instructs the jury that, in estimating the damages done to the land of the defendant, they cannot take into consideration the fact that stock might be killed at some time in the future by reason of the road, or that fire might occur, or any other speculative damages."

" The court declares, as matter of law, it was the duty of defendant North, having, at his own request, and over the objections of plaintiff, taken the burden of proof upon himself by going forward in the trial of the cause to prove every fact showing jurisdiction and the corporate existence of plaintiff, and having failed to show such facts, the plaintiff cannot recover."

" The jury are further instructed that they are not to consider or estimate any damage to North's property by reason of the possible or probable injury to, or destruction of, any property, stock, grain-houses, barns, crops, or grasses by means of fire

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