47 Neb. 761 | Neb. | 1896
This is an action instituted in the district court of Saline county to recover damages alleged to have resulted to plaintiff’s residence property, some lots and his dwelling situated in the city of Crete, from the location and operation, in proximity thereto, of defendant’s railroad, its main line and a switch, and also its roundhouse in the city named. Issues were joined and a trial had to the court and a jury. A verdict in the sum of $100 was returned for plaintiff, and after motion for new trial in behalf of either party was overruled, judgment was rendered on the verdict. The plaintiff brings the case to this court by error proceedings.
It is claimed that the amount of the recovery is too small; that the testimony shows damages to
The plaintiff complains of the refusal of the court to give the third instruction requested to be read for him, which was as follows: “In estimating the value of plaintiff’s property you should not be governed by the price that it would bring at forced sale, or the price that could be obtained for it from a speculator who might buy it for the purpose of speculation; but you should consider what it is worth to the owner for the purpose for which he uses it and desires to use it.” The court charged the jury on the subject embraced in the instruction offered in the following language:
“If you shall find for the plaintiff in this action, you should assess his damages at such sum as you shall find from the evidence that he has sustained by reason of the construction and ordinary operation of the defendant’s railroad along and adjacent to plaintiff’s property. The items to be considered by you in making your estimate of damages are: The smoke, soot, and cinders which envelope or are thrown upon plaintiff’s property or the necessary approaches thereto by passing engines; also the noise and jar of buildings caused by passing trains and engines, as well as the noise caused by ringing of bells, sounding of whistles of engines used on the road, while*765 it is also the inconvenience of ingress and egress to the property, if any, by being operated in an ordinary and proper manner proven. In short, yon should consider every element arising out of the proper and ordinary operation of defendant’s road that tends to diminish the value of plaintiff’s property, so far as the same is shown by the evidence in this case.
“2. In estimating the plaintiff’s damages in this case, if you should find from the evidence that he has sustained any by reason of the construction and operation of defendant’s railroad as alleged in the petition, you are at liberty to take into consideration the fair market value of plaintiff’s property as it was before the road was built and in operation and its fair market value after the road was built and in operation, and assess the plaintiff’s damages at such sum as shall equal the difference between the two estimates, if you shall find there is any such difference, and in ascertaining the fair market value of the property you 'are not to determine that by what it would bring at forced sale or from one that might buy it for speculative purposes, but what a reasonably prudent and competent man would pay for it provided he wanted it where it is, and as it is, and for his own use, and was willing and able to buy.”
Without commenting upon the rule announced in the instructions- asked and refused, as to whether correct or not, It is clear that the true doctrine on the subject was fully and thoroughly stated in the charge of the court in relation to-the questions involved, and consequently it was not error to refuse to give the instruction requested.
The court, at request of defendant, gave the following as a portion of its charge:. “The mere fact
Affirmed.