51 W. Va. 523 | W. Va. | 1902
Iiiram Douglass -made a deed to the Ohio River Eailroad Company granting it a right of way through two tracts of land
Evidence of mere opinions of witnesses was given to show that such cattle guards was necessary. I do not think this was admissible.
“If the facts can lie placed before a jury, and they are of such nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then the opinion of experts can not be received in evidence as to such facts. The opinion of a witness, who neither knows nor can know more about the subject than the jury, and who must draw his deduction from facts already in possession of the jury, is not admissible.” It can not be claimed that the evidence of Yosburg was admissible under the law above stated found in Overby v. Railroad, 37 W. Va. 524. Yosburg’s evidence was not admissible as an expert. Opinions of other witnesses as to necessity of cattle guards was not ad
I do not think the action was barred by limitation because the contract was continuous, to build and maintain cattle stops.
The jury found six hundred and thirty-three dollars ami thirty-three cents damages for the failure of the company to construct fences and finder-crossing on tract No. 2. The deed for right of way bound the company to build and maintain fences on both sides of the railroad and also make an under-crossing. The company contends that the suit is barred by limitation. I do not think so, because the duty was both to build and maintain fences, that being a never'ending duty. I do not see how the court can say that the act of construction is a distinct act, and because that, viewed singly, would be barred, the company would only be liable for failure to maintain the fences, only, the cost of maintenance. We cannot separate construction from maintenance, and say that only the duty of maintenance is beyond the statute of limitation. Maintenance of a fence cannot be accomplished, unless the fence has been constructed; the
_Butfl do not see that omission to make fences or cattle guards alone calls for any damage, certainly not for compensatory' damages. If there could be an action, for- nominal damages simply for such .omission, as I suppose..there can be, I do not see how it would be barred under a covenant to build and ■ maintain them; but when actual ■ loss occurs from, that omission as the proximate cause, limitation runs from the date of the loss, as to compensatory-damages, and the date of. the construction of the road, or when the fcn'ces or guards should have been made .is immaterial.
We think that the plaintiff- showed only' a- right- to nominal damages, not compensatory damages, because he showed- no actual loss from the omission to build and maintain, fences and crossings, no loss computable in law. The fencing and crossing were only for use if the land was used for grazing. ,. .Tt had no grass upon it. The plaintiff neither put cattle upon it, nor appears to-have had any.cattle t,o put upon it. He/used it.every year for grain. He had np fencing on two sides pf the held. It very plainly appeared that lie really did not,desire to,use .the land,for grazing. . Why, does it so appear? ‘ Because though the company did Imild fences three years before this ’sii.it began,' good fences, as the plaintiff adihits, he did not put a hoof of stock upon the land, but kept on cropping it. ‘His whole action shows that, as the land was first‘class Ohio river’ bottoin land, he preferred to use it for grain.. As be had rió cattle' there how did'he suffer any'loss, ánd where is the justice‘of paying him damages when he'showed no- loss? If lie had had battle there, they could have got water' from Mill creek and a drain on the laird. He drained and 'tiled the land for agricultural purposes. The company,'it is true,' did not comply with theTctter of its bond, arid is liable, to nominal damages.' Such failure of duty will not alonó give ’right- to compensatory damages. There must he both ’ a broken duty and an actual loss there from a computable loss, á measurable loss, not‘one'merely- conjectural, or that can he guessed át.
“If the company fails to perform an agreement to fence, and animals are killed by reason thereof, the measure of damages is not what it would cost to erect the fence, but the value of the animals killed or injured or other damage clone. Or, in other
Douglass made profits from this land every year by cropping. Evidence was'admitted--to prove that-by ¡ grazing the land he could have made a certain sum inore yearly than by graining the land. This-'evidence -was improper and unavailing, because it proposed an improper basis for- an ■ allowance of damages. Pro-fits by grazing, or any other'business-to be carried on in future, is 'dependent oh numerous contingencies, and any estimate of future profits can only be: conjectural, • speculative, simply -guess work. This process of getting at- damages-is not allowcd'by law; Beatty Lumber Co. v. Western Union Tel Co. (1902) cases there cited: The United States Supreme Court in Howard v. Stillwell Co., 139 U. S. 199, held that expected profit's from gfi-nding-'wlveat- and selling its flour could not-be taken into consideration’in an: action for- failure to finish a mill'at a time agreed upon.
Douglass claimed that he did not put cattle on the1 land from fear that they would-be -killed-by trains. Loss from that cause, would be purely conjectural. Such-loss, though possible, cannot be considered where-we have to'assess--damages-as actual, based on actual-loss. - The cattle'might not have been hurt. If hurt, when hurt, the Company Would have to pay their value. Shall wd make it pay- for caltle'-not hurt, not even on tire premises?- Again, the evidence discloses no cértain criterion for assessment'of'damage. A jury'must have definite evidence--by which to find a- certain - sum as compensation - for actual loss before if can render a 'verdict for compeilsatory damages: For a'broken contract merely it can find nominal damages, but not compensatory; for the very term' compensatory damages implies that there must be actual loss before compensation can be given, and' there must be definite basis given- by the evidence upon which a jury can define and fix the amount of the loss, otherwise any assessment is without law and against law. If the plaintiff can not show such a basis it is his misfortune, his evidence fails to show a loss of such substantial, tangible cast as that we can take'hold of it and weigh and fix it in dollars. -A jury is never permitted to grope in the dark and merely surmise, approximate or guess 'at damages. Watts v. N. and W.
Under these principles it was improper to allow Douglass to answer the question given in bill of exceptions 5 as to what, in his judgment had been his damages from the failure to fence the railroad right of way on tract 2, in view of its usefulness for grazing. This question called for mere opinion, and that not based on any facts by which damages could be measured. And the land was not used for grazing. The evidence of Hard-pole excepted to in bill of exceptions 6 was improper. He was asked to say whether Douglass had been damaged, taking into consideration the usefulness of the land for grazing. The question called for mere arbitrary estimate, founded on no certain facts, and gauged by a test that did not exist under the evidence in the case, the use of the land for grazing.
It was error not to exclude evidence specified in bill of exceptions 10, that Douglass was afraid to pasture cattle on land becausé he was afraid that they would be killed by trains. I have above stated reasons against this evidence. The instruction given for the plaintiff noted in bill of exceptions 16 was improper. It told the jury that if Douglass was prevented from pasturing stock by reason of the company’s failure to fence and make an under-crossing for stock, the plaintiff was entitled to recover such damages as the jury might believe from the evidence the plaintiff had sustained. No' evidence presented a foundation for this instruction. What prevented him from pasturing the land? If he had done so, and had suffered loss, then there could be recovery. As he did not so use the-land, there is no rule or principle by which to fix damaged except by guess. And besides, the instruction combined both the 'failure to fence and make a crossing in the estimation of damages, and thus give damages for both, whereas, there being no fences, the absence of a crossing could not be an element in fixing damages. And the instruction ignores the fact that Douglass did,
The instruction given for the plaintiff preserved in bill of exceptions 17 told the jury that if the company failed tp make the fences and crossing, that fact alone called for such damages as the jury might believe from the evidence had been sustained by the plaintiff. The instruction was improper. The mere failure to make a fence and crossing alone, without attendant loss ascertainable from some certain principle or basis, and not from mere guess, would not legally call for damages. On principles above stated the instruction was improper.
The court refused an instruction given in bill of exceptions 23 to the effect that as the plaintiff had conveyed to another company a portion of the lower part of tract No. 2, not reserving right to cross over said portion, to get to an under-crossing on the lower end of the tract, it was not necessary, after such conveyance, for the company to keep an under-crossing on the lower end of the tract, but the company might abandon and till up the crossings from the time of such conveyance. The court ■modified it to the effect that it was not necessary to keep open the under-crossing on that portion of the lower end of the tract conveyed to the other railroad company. I hardly think this instruction was proper. It depends on the question whether, in fact, the call for such crossing was limited to the part sold. This depends upon the nature of the tract of land. I do not see that the call for the crossing was limited to the .small piece of land conveyed away by Douglass. I do not see that his failure to reserve a passage over that piece to a crossing elsewhere would absolve the company from maintaining a crossing elsewhere. The company claims that it commenced to make a crossing under the grade on this piece, and Douglass objected to its being made there, and that this absolved the company from further duty to make a crossing elsewhere. It does not seem so to me. What mattered it to the company where the crossing was, unless a change of location would entail unreasonable expense? Wherever Douglass elected to have the crossing, he would be bound by such election.
For these reasons we reverse the judgment, set aside the general and special verdicts, and remand the case for new trial.
Reversed.