221 Ill. 367 | Ill. | 1906
delivered the opinion of the court:
At the close of all the evidence in the case the petitioner moved the court to exclude from the consideration of the jury the testimony of one Lockhart, a witness who testified on behalf of Nolin as to the damages to lands not taken, for the reason that he included in his estimate improper elements of damages. The motion was denied. The same motion was made as to the testimony of other witnesses who testified on Nolin’s behalf. Petitioner here contends that it was error to overrule these motions. These witnesses, after testifying on their direct examination to an amount that the portion of the farm not taken would be depreciated in value by the taking of the strip for railroad purposes, in answer to questions propounded on cross-examination stated that in fixing such amount they had taken into consideration, among other tilings, the increased danger from fire and the danger to live stock from the operation of the proposed railroad.
It is also urged that the court erred in giving to the jury the defendant’s fourth instruction, which told the jury that the measure of damages to the lands not taken would be “the difference in their fair cash market value before the construction of the road and after its construction,” and that in fixing such damages, if any, the jury, might take into consideration, among other things, the danger to live stock and the danger of the escape of fire attendant .upon the operation of the railroad, in so far as it appeared from the evidence and the view of the premises that such dangers, or either of them, would depreciate the fair cash market value of lands not taken.
The objection urged to this instruction and to the evidence mentioned above is that both included improper elements, namely, the danger to live stock and the increased risk of loss from fire.
It has been often decided by this court that the only question for the determination of the jury, so far as land not taken is concerned, is the amount, if any, of its depreciation in market value, and if the danger of loss from fire or the danger of loss by the killing or injury of live stock in fact depreciates the value of land not taken, such dangers, singly, together, or in connection with other like matters, afford a proper basis upon which a witness may estimate damages, and are proper elements to be considered by the jury in determining whether the land not taken will, actually be depreciated in market value, and, if so, to what extent.
In the case of Chicago, Peoria and St. Louis Railway Co. v. Greiney, 137 Ill. 628, it is said (p. 633) : “The recovery can only be for the depreciation in the .market value of the land not taken, and the jury were expressly told, in an instruction given at the instance of appellant, that they were ‘not authorized by law to allow anything, by their verdict, by reason of any supposed damage to stock from the use of said right of way for railroad purposes, or for damage to the person of the land owner or any member of his family, or the damage to stock by reason of the taking and subsequent using of said right of way; that the law considers the probable damage to stock or to the family of the land owner as' too -remote and speculative to be considered in estimating the just compensation to be paid for such right of way.’ A depreciation in the market value of the land is quite a different thing, and whether that is because of the inconvenient shape of fields, non-access from one part to another caused by the building of the road, or from injuries anticipated to property from its operation, the result is the same, and is solely because of the building and operating of the road, and therefore to be compensated for by the appellant. The material inquiry is the fact of depreciation in market value, but it is within the province of the jury to inquire whether the facts thus recited exist, and if they exist, whether they cause a depreciation, and, if any, its extent, in the market value.”
That the jury may consider whether or not the danger of fire from passing engines will depreciate the value of land not taken has been expressly held to be the law in each of the following additional cases: Keithsburg and Eastern Railroad Co. v. Henry, 79 Ill. 290; Chicago, Paducah and Memphis Railroad Co. v. Atterbury, 156 id. 281; Illinois, Iowa and Minnesota Railway Co. v. Ring, 219 id. 91. These authorities conclusively settle the question in this State.
On the other hand, the law is, and it is proper to instruct the jury, that the railroad company is bound to use the best engines, equipped with the most improved appliances to prevent the escape of fire and consequent damag'e or loss resulting therefrom, and that for negligence in that regard the company would thereafter be responsible, and the jury should not consider any loss or damage that may arise from such negligence in arriving at a verdict, (Jones v. Chicago and Iowa Railroad Co. 68 Ill. 380; Chicago, Peoria and St. Louis Railway Co. v. Greiney, supra; Chicago, Peoria and St. Louis Railway Co. v. Eaton, 136 Ill. 9; Illinois, Iowa and Minnesota Railway Co. v. Freeman, 210 id. 270;) and in the case at bar an instruction to this effect was given by the court at the request of the petitioner. The distinction is this: It is proper for the jury to consider the increased risk of loss from ñre and the increased danger to live stock if, and in so far as, the market value of land not taken is thereby depreciated; but it is not proper for the jury to anticipate damages of any character which may, but will not certainly, result from the operation of the railroad and allow anything by their verdict for such anticipated damages. Damages which may in the future follow upon the happening of some possible but uncertain event are not for .their consideration. Whether the value of the land not taken will be depreciated in the market by increased danger from fire or by increased danger to live stock is for their consideration.
It follows that the motions to strike out the testimony were properly overruled, and that there was no error in giving the fourth instruction.
The same objections as are urged to defendant’s fourth instruction are urged to his ninth instruction, and in addition it is said that by the ninth the jury were authorized to base their judgment in reference to the amount of the depreciation in the market value of the land not taken upon a consideration of the ordinary and usual manner of the operation of the road, and it is said that this left it to the jury to determine what would be the ordinary and usual manner of the operation of this road. We think this objection without merit. The jury, from their general knowledge, would know the ordinary and usual manner of operating railroads in this State, so far as material in this cause, and it was proper to instruct them on the basis that they possessed such knowledge.
Complaint is made of the refusal of the first and second instructions asked by petitioner. Each stated an accurate proposition of law and might well have been given. The substance of the first, however, is contained in the twentieth instruction given at the request of the petitioner, while the proposition embodied in the second is also found in the twenty-third instruction given at the request of the petitioner.
We think petitioner’s third instruction was properly refused, for the reason that it might have led the jury to disregard the effect, if any, of the danger to live stock from passing trains, on the market value of defendant’s lands not taken.
The judgment of the county court will be affirmed.
Judgment affirmed.