58 Neb. 239 | Neb. | 1899
In 1887 tlie plaintiff Sophia Ottillia O’Neill bought lot 8, in block 14, of Kinney’s O Street Addition to the city of Lincoln, and soon afterwards built thereon a two-story dwelling-house, which she occupies as a family residence. The house fronts on P street, which runs east and west through the city and seems to have been at one time a much traveled thoroughfare. In 1892 the defendant the Chicago, Rock Island & Pacific Railway Company constructed and put in operation a line of railroad across P street and about 225 feet west of plaintiff’s property. Shortly after the track ivas laid a depot ivas constructed on the right of way just south of P street, rendering the same impassable. This action ivas brought to recover damages to the premises above described occasioned by the construction and operation of the defendant’s road and by the obstruction of P street and the deflection of public travel therefrom. The trial of the action to a jury resulted in a verdict in favor of the plaintiff.
The. defendant complains of the admission of testimony in regard to the specific annoyances and inconveniences to which the plaintiff had been subjected in the use and occupancy of her property. We have carefully read this evidence and think there ivas no error in its reception. It is undoubtedly true that an action might have been brought and tried as soon as the road was put in operation, and that in such action all the damages which the plaintiff had sustained or ever would sustain from a careful and prudent operation of the road would have been then recovered. But it is also true that she was not required to sue immediately. It. was her privilege to wait until the extent and character of the permanent injury to her property had been ascertained by experience and made susceptible of absolute proof. (Penn
In Chicago, B. & Q. R. Co. v. O’Connor, 42 Neb. 90, it is said in the fourth point of the syllabus: “That in ascertaining such depreciation the cuts or fills made in the street in front of the property, the proximity of the track to the front of the lot, the danger of fire from passing trains, the probability of damage to the house on the lot from jars caused by passing cars and engines, the inconvenience to the occupants of the property arising from the presence and proper and ordinary use of the railway track for all time, the annoyance to such occupants from smoke, cinders, and dust from passing trains and engines, the annoyance caused by the roar of trains, the sounding of whistles and the ringing of bells, and every other fact and circumstance that would have influenced the market value of the property in the mind of a good-faith intending purchaser thereof, would have all been proper elements for consideration in determining the damages to plaintiff’s property.” Such was the character of the evidence offered by the plaintiff and submitted
It is contended that the evidence in relation to the obstruction of P street should not.have been received, because that was an act done after the construction of the road and, therefore, constituted a separate cause of action. Conceding that the construction of the depot platform should be regarded as an independent injury, it does not follow that the judgment should be reversed.
The defendant may have had reason to apply for an order requiring the plaintiff to separately state and number her causes of action; but no such motion was made, and it is now too late to take advantage of what was at most a mere defect in the form of the petition. Whether the closing of the street be considered as a substantive ground of action, or as a mere evidential fact, the testimony in question was properly admitted.
It is insisted that the witnesses for the plaintiff in estimating the damages were not limited to damages occasioned by the company’s acts, and may, in giving their answers, have taken into account depreciation from other causes. Invariably the questions were directed to the value immediately before and immediately after the road was constructed. The witnesses could not have misunderstood them. Besides, the objection now urged was not made during the trial. In view of the evidence the
„ Affirmed.
