Union Pacific Railroad Company v. Murphy

• Decision Date: 03 May 1906
• Docket Number: 14,264
• Citation: 107 N.W. 757,76 Neb. 545
• Parties: UNION PACIFIC RAILROAD COMPANY v. EDWARD D. MURPHY
• Court: Nebraska Supreme Court

107 N.W. 757

76 Neb. 545

UNION PACIFIC RAILROAD COMPANY v. EDWARD D. MURPHY

No. 14,264

Supreme Court of Nebraska

May 3, 1906

ERROR to the district court for Dawson county: BRUNO O. HOSTETLER JUDGE. Affirmed.

AFFIRMED.

John N Baldwin, Edson Rich and John A. Sheean, for plaintiff in error.

Warrington & Stewart and H. M. Sinclair, contra.

EPPERSON C. AMES and OLDHAM, CC., concur.

OPINION

EPPERSON, C.

Murphy sued the defendant company in the county court of Dawson county, charging that on or about the 22d day of September, 1902, he suffered a loss by fire of 11 tons of hay, 155 growing trees and 35 fence posts of the aggregate value of $ 226.20, and that said fire was caused through the carelessness of the defendant. In his petition filed in the district court for said county, to which the case was taken on appeal, the plaintiff fixed the time of said fire as in the county court "on or about September 22, 1902." Near the close of the trial, the court permitted plaintiff to amend his petition by stating that the fire occurred on or about the 21st day of October, 1902.

1. Defendant argues that by such amendment a different cause of action was alleged. This is seriously considered because there was in fact on each of the days in controversy a fire caused by defendant, which damaged plaintiff's property. Defendant contends that by the amendment plaintiff was permitted to substitute the damage done by the fire other than the one alleged in the county court. The evidence shows that the fire of September 22d destroyed the hay on the south side of the track, and the fire of October 21st destroyed the property alleged in the petition. The damages alleged were the same in the petition filed in the county court and the amended petition filed in the district court. There was only the one fire which damaged fence posts, trees and hay. The same cause of action was alleged. Plaintiff might have recovered damages done October 21, even though he had not amended his petition, but, having chosen to amend, did not thereby lessen his rights to recover.

2. As to the measure of damages, the court instructed the jury as follows: "The court instructs the jury that, if you find from the evidence and under the instructions of the court for the plaintiff, you will assess the amount of his recovery at the amount of damage the trees sustained by reason of the fire, and this sum is ascertained by determining the value of the trees burned as standing timber with reference to the land in the situation in which they stood, less their value in their burned and charred condition after the fire." Defendant takes exception only to the clause "with reference to the land in the situation in which they stood." Otherwise, the instruction is identical with that approved by the court in the case of Fremont, E. & M. V. R. Co. v. Crum, 30 Neb. 70, 46 N.W. 217. It was there held that the measure of damages was not the market price of trees for transplanting as shade or ornamental trees, but the difference in value of such trees before and after the fire as standing timber. We cannot see that the objectionable feature varied the approved rule. There was no evidence that the trees in controversy in this case were intended for any other purpose which would permit their separation from the land, or that they were of value for the purpose of transplanting. By inserting the matter objected to in this instruction, the trial court properly limited the jury to a consideration of the one element of damage. It occurs...