109 Wis. 377 | Wis. | 1901
This is an action for damages for the breach of a written contract under seal, executed and acknowledged by the plaintiff and the defendant, and duly witnessed March 14, 1899, wherein and whereby the plaintiff, in consideration of $250, to him in hand paid, granted, licensed, and permitted the defendant, its agents, contractors, and employees, to enter upon the S. W. % of the N. E. £ of section 31, township 29 N., of range 14 W., in Dunn county, and excavate and remove therefrom all the earth and material from a strip of land 250 feet in width and 1,000 feet in length adjoining the right of way of the defendant on the north, and extending east 1,000 feet from the west line of the forty-acre tract,-described; and it was therein mutually understood that the plaintiff only granted to the defendant the right to remove earth from the strip of land
The complaint, among other things, alleges that the plaintiff had performed each and every condition on his part agreed to be performed by such written contract; that the defendant under and by virtue thereof entered upon the land, and excavated and removed dirt therefrom; that the new line of railway referred to had been completed, and the defendant had ceased to excavate from such land, and had stopped all work thereon and had removed therefrom; that the defendant had failed and neglected to perform the terms and conditions of the contract on its part to be performed, in this: that it had failed and neglected to leave the surface of the land where it had been so excavated in a reasonably smooth condition, but, on the contrary, left the surface in a very rough, uneven, and unsightly condition, and thereby greatly injured the land and the farm of the plaintiff adjoining the land and of which such land was a part; and claimed damages in the sum of $300.
The defendant answered, by way of admissions, denials, and counter allegations, to the effect that it had excavated and removed, from the land therein described, certain earth and material for the construction and improvement of its railroad; that the work referred to in the contract had been completed; that it had ceased to excavate from the land, and had stopped all work, thereon; that it had left the surface of the land where it so excavated in a reasonably smooth condition.
At the close of the testimony, the jury, by direction of the court, returned a verdict in favor of the defendant. From a judgment entered thereon, the plaintiff brings this appeal.
The contract gave the defendant the right to “ excavate and remove therefrom all the earth and material from ” the
But the case does not turn upon such ruling. The plaintiff had, as a witness, the county surveyor, who had followed surveying as a business,— an expert engineer, who had carefully examined the premises and made the measurements mentioned, and who had twenty -years’ experience as railroad contractor, mining surveyor, street commissioner, and otherwise, in removing and leveling dirt, -removing embankments, and leveling or smoothing embankments of dirt, and who testified that he could make an estimate of the cost of putting this bank in any condition of smoothness that he had in mind; that he had made an estimate in regard to this land; that he figured on the cost of the removal of the bank between the track and the main bank, to make a slope of thirty-five feet to the hundred, and then, after going back a certain distance, cutting off the one bank so as to show such slope; that from his experience he was capable of making a correct estimate of the actual cost of removing the 'dirt and making such grade; that he took into consideration the cutting of the bank and filling in both ways, so as to have a slope of thirty-five feet to the hundred; that he knew what it was worth per yard to remove that soil,— cutting and filling as mentioned. The plaintiff’s counsel put to such expert witness numerous questions, which were mostly excluded by the court. A few of them only will' here be considered. Among the questions so excluded were questions to the effect: What, in your judgment, would be the cost of taking from this southern bank enough to make the grade there rise thirty-five feet in the hundred ?
It should be remembered that the object of making ob
By the Court.— The judgment of the circuit court is reversed,- and the cause is remanded for a new trial.