Tate v. M., K.&T. Ry. Co.

• Citation: 64 Mo. 149
• Parties: SAM'L P. TATE, Respondent, v. M., K. & T. RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1876
• Court: Missouri Supreme Court

64 Mo. 149

SAM'L P. TATE, Respondent,

v.M., K. & T. RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Randolph Circuit Court.

Plaintiff sued to recover damages occasioned his lots, which abut on Moulton street, in Moberly, by reason of the building and construction of the railroad bed and track on the street in front of his lots, and the throwing up of an embankment in front thereof.

The plaintiff introduced evidence tending to prove his ownership and possession of the lots, their location and surrounding; that Moulton street was a public street in the town of Moberly, ninety feet in width, and extended in front of his lots; that in the early part of 1873, the railroad and road-bed, cross-ties, track, etc., were built and constructed on Moulton street, and a grade and embankment therefor, from two to six feet in height, thrown up in front of plaintiff's lots; that since the construction of said railroad it was operated by appellant, and appellant stood cars thereon for loading and unloading.

Plaintiff also introduced in evidence a resolution of the board of trustees of the town of Moberly, authorizing the appellant to construct the railroad over and upon Moulton street.

Defendant then introduced evidence tending to show that the Tebo & Neosho Railroad Company, under its charter, was located and established, from Boonville by way of Fayette, to Moberly, and over said Moulton Street in front of these lots.

For other facts see opinion of court.

John Montgomery, Jr., for Appellant.

The instructions do not properly declare the law. Where the railroad company is authorized by its charter, or the ordinances of a city, to construct a railroad over any of its streets, they have a right to do so, and to use it for the ordinary purposes of a railroad, as a means of travel and transportation. (Porter vs. N. Mo. R. R. Co., 33 Mo. 137; Lackland, Adm'r, vs. N. Mo. R. R. Co., 34 Mo. 274; Lackland, Adm'r, vs. N. Mo. R. R. Co., 31 Mo. 186.)

In the case in 33 Mo. supra, the court says such damages as grow out of the construction of a grade and embankment upon a portion of the street are damnum absque injuria. And the doctrine is supported by authority. (1 Redf. R. R., 259, § 70; also p. 316; Elliott vs. Fair Haven & Westville R. R. Co., 32 Conn. 580; New Albany R. R. Co. vs. Daily, 12 Ind. 551; Nicholson vs. N. Y. & New Haven R. R. 22 Conn. 82; Gould vs. Hudson River R. R. Co., 2 Seld. 538.)

The difficulty of crossing a railroad track, the detention by trains, the frightening of horses, the danger to persons crossing the track, the noise of the train and various other things that might be named, are inconveniences which property owners, on a street where a railroad is located, have to suffer; and yet to hold that such could recover damages, would in effect prevent the construction of a railroad upon a public street. (Stone vs. Fairbury & N. W. R. R. Co., 68 Ill. 394; 113 Mass. 58; Moses vs. Pittsburg, Fort Wayne & Chicago R. R. Co., 21 Ill. 522; Proprietor of Locks and Canals vs. Nashua & Lowell R. R. Co., 10 Cush. 385.)

For works of a public nature erected by authority of the legislature, unless the statute makes provision for the recovery of consequential damages, no action can be maintained therefor, if the work be constructed in a careful and prudent manner. (City of St. Louis vs. Gurno, 12 Mo. 418; Lambert vs. City of St. Louis, 15 Mo. 185; Proprietors of Locks and Canals vs. Nashua & Lowell R. R. Co., 10 Cush, 385; 8 Gray, 423; 23 Barb. 488; 49 Barb. 121; 16 Barb. 106; Mellon vs. West R. R. Corp., 4 Gray, 301; Lackland vs. N. Mo. R. R. Co., 31 Mo. 185.)

The use which defendant was authorized and had a right to make of this street, was to occupy it with its track and run its cars and trains thereon in the usual course of its business, and unless the defendant constructed its road in an improper manner, or wantonly or negligently ran its cars so as to cause needless damages to abutting property, no action for damages can be maintained. (Hatch vs. Vermont Cent. R. R., 25 Vt. 49; Whitcomb vs. Same, 25 Vt. 49; N. Y. & Erie R. R. Co. vs. Young, 33 Penn. St. 180; Hortoman vs. Lex. & Cov. R. R. Co., 18 Mon. 218; Arnold vs. Hudson River Rl'y Co., 49 Barb. 108; Cleveland & Pittsburg R. R. vs. Speer, 56 Penn. St. 325; Williams vs. N. Y. Cent. R. R. Co., 16 N. Y. 103; Crawford vs. Delawne, 7 Ohio St. 459; Cincinnati vs. Spring Grove Av. Rl'y Co., 14 Ohio St. 523.)

And the damages for which plaintiff was entitled to recover were such personal inconveniences suffered by him in his business or in his access to his property, not suffered by the public at large. (Ang. Highw. § 285; Lackland vs. N. Mo. R. R., 34 Mo. 267; Brainard vs. Conn. River R. R., 7 Cush. 506; Stetson vs. Faxon, 19 Pick. 147; Proprietors Quincy Canal vs. Newcomb, 7 Metc. 276; Smith vs. Rector, 7 Cush. 254; Hughes vs. Prov. & Wor. R. R., 2 R. I. 493; Radcliffe, Ex'rs, vs. Mayor of Brooklyn, 4 Comst. 207.)

McCann & Rutherford, for Respondent, cited: Williams vs. Natural Bridge Plank Road Co., 21 Mo. 581; Lackland vs. N. Mo. R. R. Co., 31 Mo. 180; Lackland, Adm'r, vs. N. Mo. R. R. Co., 34 Mo. 259; Thurston vs. City of St. Joseph, 51 Mo. 510.)

NORTON, Judge, delivered the opinion of the court.

This suit was instituted to recover damages for injury to four lots owned by plaintiff abutting on Moulton street, in the town of Moberly. The petition alleges that defendant in the construction of its road on said street erected an embankment from three to seven feet high in front of said lots, and allowed its cars, coaches and trains to stand on its track, whereby the use of said street was destroyed and ingress and egress to plantiff's lots prevented. The allegations of the petition are denied by answer. The case was submitted to a jury and a verdict was found for plaintiff upon which judgment was rendered and from which defendant appeals.

It is urged by the defendant that during the progress of the trial the court admitted improper and illegal evidence against his objection, and also that the court erred in giving the instructions asked for by the plaintiff, and in refusing six instructions which were asked for by defendant. These are the only points presented in the record. During the trial the court allowed witnesses, after a proper examination touching their knowledge of the subjects, to testify as to the market value of the lots, both before and after the obstruction placed in the street in front of them. It is insisted that this evidence should not have been admitted because it was the mere expression of an opinion of the witness.

The general doctrine is that a witness should not be allowed to give his opinion, but should be confined to the statement of facts, leaving the conclusion to be arrived at to the jury. This rule however is not of universal application. In questions involving the value of property the opinion of witnesses may be received, and in such cases there is an exception to the general rule. Witnesses familiar with the value of property are permitted to state their opinion as to its value. (Sedg. on Dam. 752; Thomas vs. Mallenkrodt, 43 Mo. 58; Lay vs. Hopkins 5 Denio, 84; Robertson vs. Knapp, 35 N. Y. 91; Clark vs. Baird, 5 Seld. 183.)

The objection of the defendant to the evidence admitted was therefore properly overruled.

The following instructions were given for plaintiff:

1. If defendant constructed its railroad on the street in front of plaintiff's lots, by making an embankment or grade along the line of the street, and placed thereon cross-ties and track for its road, and uses the same for switch or side track purposes by standing thereon cars or trains of cars, and thereby has unreasonably and materially obstructed the use of said street, or has materially obstructed the way to and from said lots so as to lessen the value of plaintiff's lots, the jury will find for plaintiff.

2. If the defendant located and constructed its railroad in the street in front of plaintiff's lots by making its road-bed and grade, and placing thereon cross-ties and track for its road, above the grade or level of said street, or uses the same for switch or side track purposes, by standing cars thereon not in other use, and has thereby unnecessarily impaired the usefulness of said street, or has failed to restore said street to its former condition of usefulness, so that the lots of plaintiff, as a consequence, are injured in value, the jury will find for plaintiff.

3. The measure of damages is the reduction in the market value of said lots caused by such use and location of defendant's railroad in said street: said damages not to exceed the sum sued for in plaintiff's petition.

4. Although the jury may believe from the evidence that the Tebo & Neosho Railroad Company built the road and embankment in Moulton street, opposite the plaintiff's lots, if they further believe that said railroad and embankment were so built as to obstruct the free use of said Moulton street, and thereby did damage the plaintiff's lots, and that said railroad has been put into defendant's possession by said Tebo & Neosho Railroad Company, with full power and authority to continue said obstruction by the use and operation of said railroad in said street, and that defendant has since continued said obstruction by the use and operation of said railroad in said street, then the jury are instructed that defendant is equally liable for the same.

It is objected that there was no evidence on which to base the first instruction. This objection is not well founded, because the evidence showed that the resolution of the board of trustees conferred upon defendant the right of way and privilege to build and operate its road along said street, and that from the time of its completion it was in the possession of defendant and has ever since been operated by him.

It is further objected that the word “value,” as used in the first and second instructions, and the words “market...