109 Ky. 328 | Ky. Ct. App. | 1900
Reversing.
Appellee, A. L. Winstead, is the owner of two vacant lots on First street in the city of Henderson, near the city limits. The city changed the grade of the streét in front of his lots, cutting it down so that at the lowest point it was 4% feet below the level of the ground, and at the highest point was on about the same level. He then filed this suit to recover of the city damages for the. injury to his property from the change of the grade of the street, alleging that thereby it had been damaged in the sum of $500. Issue was made as to the damages, and a verdict was rendered fixing the damages at $200. The chief questions on the appeal relate to the admission of evidence and the instructions of the court to the jury. As these raise, in effect, the same question of law, they will be considered together. The proof for appellee showed these facts: Before the street was cut down, it was on the natural surface of the ground, and had become hardened, leaving a good roadway to appellee’s distillery, situated beyond on other property. Over it heavy loaded wagons could readily pass at all seasons of the year in front of the two lots in going to and from the distillery. On the side of the roadway there were a few trees and stumps, but there was no trouble in hauling over the roadway before it was cut down. After it was cut down, the city took no steps to rock or gravel or otherwise improve the street, and in wet weather and after freezes it became miry, and almost impassable. Coal wagons going with coal to the distillery mired in front of the lots, and had to be unloaded before they could be moved. The city objected to all this evidence. -the objection was overruled, and the evidence admitted, but the court told the jury they were not to consider any evidence about the dis