Thompson v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 21 May 1909
• Docket Number: 15,624
• Citation: 121 N.W. 447,84 Neb. 482
• Parties: JAMES THOMPSON, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

121 N.W. 447

84 Neb. 482

JAMES THOMPSON, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT

No. 15,624

Supreme Court of Nebraska

May 21, 1909

APPEAL from the district court for Franklin county: ED L. ADAMS JUDGE. Reversed with directions.

REVERSED.

James E. Kelby, Byron Clark and Frank E. Bishop, for appellant.

George W. Prather, contra.

OPINION

LETTON, J.

This is an action for negligence. Three causes of action are set forth in the petition. The first is for damages caused by fire negligently started by an engine on defendant's right of way, which burned about ten acres of alfalfa belonging to the plaintiff, the second is for similarly burning some hay and fence, and the third cause of action is for damages to certain fields of corn in the years 1903, 1904 and 1905, respectively, which it is alleged were occasioned by successive floods caused by the negligent manner of construction of the railroad embankment by which flood waters were held back and caused to overflow the land.

1. There seems to be no contention as to the second cause of action, so it will be unnecessary to give it consideration. As to the first cause of action complaint is made that there was no proof that the engine caused the fire complained of. This objection does not appear to be very seriously argued in the brief. Two witnesses testified that they saw the fire just after it started and before it was off the right of way; that a freight train had just passed, and that it spread from the right of way to the alfalfa field. Other evidence clearly identifies the fire which burned the alfalfa as that which started on the right of way.

2. It is next urged that the court erred in permitting the plaintiff to prove the damages on account of the destruction of the alfalfa crop by showing the value of the land before the crop was burned and its value after the crop was destroyed, and in instructing the jury that the measure of damages for the loss of the alfalfa would be "the difference in the value of the land with the stand of alfalfa as proved immediately prior to its destruction and the value of the land at and immediately after the destruction of the alfalfa." The court was within the rule approved in Morse v. Chicago, B. & Q. R. Co., 81 Neb. 745, 116 N.W. 859. There is a difference in conditions between an ordinary annual crop and a permanent crop, such as alfalfa which justifies and requires a different rule in the measurement of damages, and we are of the opinion that a fair criterion of the damage suffered by the destruction of a good stand of alfalfa would be the difference between the value of the land with such crop standing and growing upon it and the same land without such crop. We see no error in this instruction. This case is very similar to Anderson v. Chicago, B. & Q. R. Co., ante,...