141 S.W. 1013 | Tex. App. | 1911
Congress avenue runs north and south, and is 120 feet wide. There is a double track of street railroad on said avenue. Sixth street runs east and west. There is a track of street railroad on said Sixth street. The fence extended the full length of said lot on Sixth street, up Congress avenue the width of said lot, and back to the northwest corner of same. Appellees were in the jewelry, sporting goods (guns, fishing tackle, etc.), and pawnbroking business. Their place of business was on the east side of Congress avenue, four doors north of the Littlefield lot. By reason of said fence persons going south on the east side or said avenue and desiring to continue south on same, or east on Sixth street, were compelled to turn west after passing appellees' place of business to the northwest corner of said fence, and pass along said fence to the southwest corner of same and east on Sixth street, or diagonally across Sixth street to east side of avenue. The passageway between said fence and said street railways was about 12 feet in width. An ordinance of the city of Austin required that vehicles traveling north on the avenue should pass to the east side of the railway track, and those traveling west on Sixth street should pass to the north side of the railway track. By reason of the narrowness of the passage between said fence and railway track, there was some danger to pedestrians in traveling the same. Persons going north on the east side of the avenue, being unable to see through said fence or around the same, could not tell how far north it extended; and persons going either north or south could not, for the same reason, tell whether or not vehicles were likely to turn the corner into said passway. By reason of these facts the, south breeze was shut off from plaintiffs place of business, rendering the same uncomfortable, and travel was diverted to a great extent from in front of their said place of business.
Plaintiffs were conducting a well-established business, and their trade fell off from the 1st of March to the trial of this case, September 12-16, 1910, and their losses in profits, which the evidence indicates they otherwise would have made, were equal to the amount of the judgment in their favor. This loss of trade did not arise from trade conditions; the trade in the city of Austin for 1910 being as good as it was in 1909. Nor did it arise from decrease of stock carried by appellees. In fact, the evidence indicates to a reasonable certainty that the decrease of appellees' business, and consequent loss of profits, was due solely to the obstruction of travel, caused by the erection and maintenance of said fence.
1. Appellant contends that damages on account of loss of profits are not recoverable in any case. The courts of this state hold to the contrary. Railway Co. v. De Groff,
2. One reason assigned by appellant why loss of profits cannot be made the basis for damages is that the same are merely conjectural and necessarily uncertain. We do not understand that the courts of this, or of any other state, have held that loss of profits can be recovered as an element of damages, unless the amount of such lost profits be shown by competent evidence with reasonable certainty. In Railway Co. v. De Groff, supra, our Supreme Court, referring to the case of Railway Company v. Hardey,
3. As another reason why appellees should not be allowed to recover in this case, appellants allege that the injury suffered by them by reason of the obstruction of the street was such as was common to all. Injuries suffered by reason of the unlawful obstruction of a street which are common to the public are not recoverable at the suit of an individual. In such case, "it is not enough that a party has suffered more damages than others. It must be of a different character, special and apart from that which the public in general sustains." Stufflebeam v. Montgomery, 3 Idaho (Hasb.) 20, 26 P. 125. This does not mean that the complainant must necessarily be the only sufferer by reason of the wrong complained of. If several persons should fall in a ditch dug across a street and negligently left open, and each should have his leg broken by such fall, the injury suffered by each would be peculiar to him as distinguished from the inconvenience experienced by the public by reason of being temporarily unable to travel on such street. We think that loss of profits by reason of the wrongful obstruction of a street is a damage peculiar to the person thus injured, even though others similarly situated may be damaged in like manner. In Railway Co. v. De Groff, supra, the court quotes with approval from the case of Railway Co. v. Hardey, above referred to, as follows: "We think, on the contrary, that it is well established by this court that illegally obstructing and continuing to obstruct a public street, so as to prevent the customers of a merchant from getting to his store is inflicting upon him a special wrong, not shared in by the public at large, for which he is entitled to maintain an action for damages.
Appellant says that appellees had no vested right in the public travel on the obstructed street. If by this is meant that right of the public to travel on said street was no particular concern of appellees, the statement is correct, and appellees could not recover on account of the unlawful interference with such right. But appellees had a vested right to conduct their business in their store on said street; and when, as is shown by the evidence herein, their business was injured by the wrongful acts of the appellants in obstructing travel on such street such obstruction became their particular concern, not by reason of the injury inflicted upon the public, but by reason of the particular injury inflicted upon them.
4. Appellant, in support of its contention that loss of profits are not recoverable in this case, cites the cases of Liermann v. Milwaukee,
All the cases cited may be differentiated from this case in that in those cases the obstruction was lawful. That this is true is shown by the conclusion reached in Stetson v. Faxon, supra, decided by the same court (Supreme Court of Massachusetts) that decided Willard v. Cambridge, supra. In Stetson v. Faxon, which is a well-considered case, wherein many cases, both English and American, are cited, it was held that plaintiff was entitled to recover damages for loss of business occasioned by building a house, which projected thirty-six feet in the street, whereby travel was cut off from plaintiff's place of business.
5. Appellant assigns as error the action of the court in permitting witnesses to state that, in their opinion, the effect of erecting and maintaining said fence was to turn travel from in front of appellees' place of business, whereby their trade was diminished. It is true, as a general proposition, that witnesses must state the facts and not their opinions. The exceptions to this rule are not confined to expert testimony. A nonexpert witness who states the facts upon which he bases his opinion, and thereby shows himself capable of having an opinion on the subject, may, in many instances, be permitted to state his opinion as drawn from the facts stated by him. Railway Co. v. Klaus,
Each of the witnesses in this case testified that he had long been familiar with business conditions on Congress avenue and with the travel on said street; that he knew the manner of the construction of said fence, the width of the passage left between the fence and the street railway, and that he had observed from time to time the amount of travel on the east side of said avenue in front of appellee's place of business, as compared with the travel in front of the block on the opposite side of the street, during the time inquired about. Each of them testified to having frequently passed between said fence and said street railway, and on many occasions having met vehicles in said passageway, and some of them stated that they had barely escaped being injured by such vehicles. Each of them testified that he had observed that persons traveling north on the east side of said avenue south of the block in which plaintiffs' place of business was situated crossed the avenue to the west side, instead of going through said passage and back to the east side in front of appellees' place of business. One of said witnesses, who was one of the appellees, testified that he had stood on the corner of the block opposite from time to time and had counted the number of persons who crossed to the west side of the avenue, and that more than half of the travel going north on the east side of the avenue crossed the same at Sixth street to the west side.
6. It was not reversible error, to say the least of it, to allow the witness referred to in the preceding paragraph of this opinion to state that, in their opinion, the effect of said fence was to divert travel from in front of appellees' place of business, for the reason that from the facts stated by them, assuming the same to be true, the jury must necessarily have arrived at the same conclusion. Smith v. Eckford (Sup.) 18 S.W. 210; 17 Cyc. p. 60.
7. Appellant insists that the judgment in this case should be reversed, for the reason that there was no evidence from which the jury were authorized to find the amount of damage suffered by appellees by reason of the fence and buildings complained of. We think the evidence in this case was sufficient as a basis for the verdict of the jury, as shown by the findings of fact herein. The authorities hereinbefore cited upon the proposition that loss of profits, when properly proven, is recoverable in damages, sustain *1018 the verdict in this case in so far as it involves the certainty of the amount of such lost profits. Appellant says in this connection that the proof was only as to the loss of gross profits, and that if appellees were entitled to recover anything on account of the loss of business, it was only for the net profits. This is a correct proposition of law, and, abstractly speaking, is a correct statement of the fact with reference to said evidence, but the evidence further shows that the gross profits lost were also net profits, in that appellees, during said time, were conducting said business at the same expense that they would have incurred had their trade not been diverted — that is to say, they paid the same amount of rents, clerk hire, and advertising, and did the same amount of work themselves that they would have done during said period had said fence not been erected.
8. Appellant contends that the amount of the judgment rendered in this case is excessive. The evidence on this point is that from March 1 to September 10, 1909, appellees' sales amounted to $8,436.30; for the months of January and February their business increased over their business for the same months in the previous year 27 per cent. This is accounted for by the fact that they had very materially increased their stock. The proof as to business conditions in Austin indicates that their business, but for such obstruction, should have increased to this extent from March to September, 1910, over the like period in 1909. If so, during said period their business should have amounted to $10,714.10. It was in fact during this period in 1910, $7,070.45, showing a loss in business of $3,643.65. The evidence is that their profits were 40 per cent. This would have entitled them to a judgment for $1,457.46. The judgment in this case was for $1,250, for which reason we overrule appellant's assignment as to the amount of the judgment.
9. Appellant assigns as error the fourth paragraph of the charge of the court for that under said charge the appellees were entitled to recover the whole of their loss of profits by reason of the erection of said fence, and ignores the fact of appellant's right to use one-third of the street abutting on the building site; and does not instruct the jury that in the event they found for plaintiff by reason of the loss of profits, to deduct from the same the amount that they would have lost by reason of the use of one-third of said street for building materials. Had appellant desired a charge as to this matter, we think it was its duty to have requested the same, which was not done. There was no evidence in the case upon which such a charge could have been predicated. The only evidence in this regard was that of appellees' witnesses who stated that during the months of January and February, when the old buildings on said lots were being torn down, their business was not decreased, but, on the contrary, increased; and also that during the same period for which damages are claimed herein a building similar to the one being erected on the Littlefield lot was being erected diagonally across the street on the Scarborough lot; that the material for the erection of the Scarborough building was deposited in the street in front of the same, but not fenced, and that during said time the travel on the west side of the street and in front of said Scarborough building was not diminished.
We do not think that said paragraph of the court's charge is subject to the criticism that it is upon the weight of the evidence by reason of the fact that it states the allegations of the plaintiffs as to conditions from which they claimed they suffered damages.
10. Appellant assigns error upon the eighth paragraph of the court's charge for the reason alleged by it that the same, in effect, advises the jury that the deposit by defendant of building materials in the streets of the city of Austin was not sanctioned by express municipal authority. The charge complained of does not so instruct the jury, but, on the contrary, is more liberal than appellant was entitled to in that the court instructed the jury that the obstruction was not necessarily illegal, even though not sanctioned by express municipal authority. The court in said paragraph of its charge instructed the jury that if they found "from a preponderance of the evidence that there was a reasonable necessity for the erection and maintenance of said fence and buildings by the defendant company to enable it to erect the buildings under erection on the aforesaid lots, and that the defendant company did not leave the street in an unsafe and dangerous condition, or that said defendant had not used it in an unreasonable manner for an unreasonable time, then you are instructed to return a verdict for the defendant in this case."
While the appellant had the right to use one-third of the street for the deposit of building material, our Supreme Court held in the case of American Construction Co. v. Seelig,
The effect of the verdict of the jury, under the charge above referred to, is a finding by them that the fence erected by appellant was either unnecessary, or that it was maintained for an unreasonable length of time.
The evidence in the case would sustain a finding that a fence of the character erected by appellant was unnecessary. In the cases cited by appellant, wherein damages were not allowed by reason of street improvements and temporary diversion of travel, the work being done was by lawful *1019 authority; that is, it was being conducted by the city itself, and for that reason such decisions are not applicable to this case, wherein the obstruction was unlawful.
For the reasons herein stated, the court did not err in refusing to give special instruction No. 2, requested by the appellant, to the effect that appellant had the legal right to fence off and inclose its building material with a fence reasonably sufficient to protect the public from injury therefrom. Appellants invoke an ordinance of the city of Austin which requires all persons making excavations adjoining any street, to fence the same with a fence at least three feet in height. This ordinance was passed upon in the Seelig Case as not rendering lawful the fencing of a portion of the street. It is the evident purpose of said ordinance to require that the fence be built on the line of the lot where the excavation is made, and not in the street.
11. Witness Moore was permitted to testify, over appellant's objection, that a fence of the character involved in this suit was not, in his opinion, necessary to the construction of the building being erected. Said witness testified as an expert builder, and for that reason it was not error to allow him to give his opinion; but such error in any event would have been harmless, inasmuch as said fence was unlawful, without regard to its being necessary for the purposes claimed by appellant.
For further statement of our views on the issues here involved, see opinion in case of American Construction Co. v. Davis,
For the reasons herein stated, the judgment of the trial court in this case is affirmed.
Affirmed.