187 Ky. 812 | Ky. Ct. App. | 1920
Opinion op the Court by
Beversing.
This appeal is from a judgment in favor of the appellee, D. C. Dingus, against the appellant, Elkhorn and Beaver Valley Bailway Company, for an alleged breach by the latter of a contract, which it had entered into with the former for the erection and maintenance of a depot upon its line of railroad, between Beaver Creek and Wayland, upon a parcel of land, which had been conveyed to the Bailway Company by Dingus. Dingus owned a tract of land at the place and the parcel conveyed by him was a portion of the tract and was conveyed to the railway company for a right-of-way over which it proposed to construct and operate its 'railroad and upon which to erect and maintain a depot and necessarily to make a stopping place for its trains. The deed by which the conveyance was made was executed in the year 1911 and the consideration for its execution recited was “one dollar and other good .and valuable considerations.” The deed, also, contained the following stipulations: “The Elkhorn and Beaver Valley Bailway Company agrees to build a depot on the strip of land herein conveyed,” and, “It is understood that the foregoing strip or parcel of land is purchased for the purpose of construction and operating thereon a standard gauge railroad and facilities appurtenant thereto.” The habendum contained a clause of general warranty.
The trial resulted in a verdict by the jury in favor of Dingus and a judgment in accordance therewith. The railway company’s motion for a new trial being overruled, it seeks a reversal of the judgment upon several grounds of which it is not necessary to consider any, except its contention that the court erred to its prejudice in giving and refusing instructions to the jury and in the admission of incompetent evidence against it upon the trial.
(a) The instructions of the court to the jury were erroneous, in that they submitted issues which did not exist, either in the pleadings or in the evidence. They were furthermore so drawn as to submit to the jury and
To determine what the instructions should have been, it is necessary to consider the facts which the evidence conduced to prove. The construction of the railroad began in the early part of the year 1913, but there is a conflict of testimony as to when it arrived at such a state of completion that trains were operated over it carrying passengers and freight. The testimony offered by Dingus tended to prove that trains began to pass over the road in the latter part of 1913, or in the early part of 1914, while the evidence for the railway company was to the effect that the road was not completed for the operation of trains until July 1st, 1914. No pretense was made by the railway company of the erection of a depot upon the land conveyed to it by Dingus until the 5th day of June, 1915, when it let a contract for that purpose, and the building which the railway company now Insists was the one which it had contracted to erect, was built during the months of June and July, 1915, An agent was not maintained at the depot for some months after its erection, the door was not kept locked, and any one could enter at his pleasure. The building was sixteen (16) feet in width and twenty-four (24) feet in length, and after a time it was separated into two rooms by a partition wall, one of which rooms was used as a ticket office, and the other for a waiting room, arid freights could not be put into it at all, but two box cars
The contract did not express any time within which the railway company should erect a depot, and neither did it define the style or dimensions of the depot, which was agreed to be erected and maintained. As no reason would exist for a depot unless and until the railroad was so completed, that trains could be operated over it, it must be concluded that the parties intended by the contract, that the depot should be-erected within a reasonable time after the operation of trains began over the road, and that it should be maintained thereafter. In the absence of any stipulation in the contract, as to the style and dimensions of the depot, the parties in making the contract must have contemplated that it should be such a depot as was suitable and adequate for the reasonable requirements of the normal passenger and freight business at the station where the depot was to be situated. In Ecton v. Lexington & Eastern Ry. Co., 59 S. W. 864, in considering a similar question this court said: ££A deed providing that the grantee railroad should establish and maintain a station on the land conveyed and erect a depot thereon, imports that the company will build such a depot and maintain such a station as is fairly adequate to the business to be done at the place and this depends on many circumstances, etc. . . .”
Where a landowner conveys a portion- of a tract of land to a railroad company in consideration of the agreement of the latter, to construct its railroad over and to erect and maintain a depot on the land conveyed to it, which necessarily includes the establishment of a
It is apparent, however, that upon the issues in the instant case, that an instruction, which merely defines the measure of damages for a breach of a contract to erect and maintain a depot, where there is an entire failure to erect a depot, does not suffice. If within the time provided for by the contract the railway company had erected a depot, but, not such a one as the contract provided for, the damages suffered by Dingus would be the difference between the market value of the lands owned by him, at the place, at the time of the breach, with such a depot as was erected thereon, and what their market value would have been, with such a depot thereon as the contract provided for; and if a depot such as the contract provided for should have been erected, but not within the time required by the contract, the damages, suffered by Dingus, would have been the loss sustained by' him, if anything, because of the delay in erecting the depot. L. H. & St. L. Ry. Co. v. Baskett, 104 S. W. 695. This loss would not have been the differenpe between what the market value of .the lands were at. the time, the
(1) In accordance with the contract between the plaintiff and the defendant, it was the duty of the defendant, within such a time after the defendant completed its road, so as to operate trains, thereon, as was reasonably necessary for the purpose, to erect and maintain upon the land conveyed to defendant by plaintiff a depot, which was reasonably adequate for the accommodation of the normal number of passengers and the transaction of the normal freight business, at said place, in the ordinary and usual way in which a depot is made use of, and if the jury believes from the evidence, that the defendant failed within such a reasonable time, after the completion of its road, so as to operate trains over it, to erect and maintain such a depot as above defined; or if it erected and maintained such a depot as above defined, but, did not do so within a reasonable time for the purpose, after the completion of its road so as to operate trains thereon, the jury will find for the plaintiff, and will assess the damages, to which he is entitled, as hereinafter directed by instructions, two and three.
(2) If the jury believes and finds from the evidence, that the depot erected and maintained by the defendant was not such a depot as it was required to erect, as defined by instruction No. 1, but, was erected within the time, it was required to erect a depot, as set out in instruction No. 1, it will find for plaintiff the difference, if any, between the fair market value of the residue of the lands owned by plaintiff, at said place, at the time tlie depot was erected, with the depot thereon which was erected, and what the fair market value of said lands would have been, at said time, with such a depot thereon, as is defined in instruction No. 1; but, if the jury believes from the evidence that the depot erected and maintained by defendant was neither erected within the time required, nor was such a depot as required, as set out and defined in instruction No. 1, it will find for plaintiff the
(3) If the jury believes and finds, from the evidence, that the depot erected and maintained by defendant was such a depot as the contract required, as defined in instruction No. 1, but, was not erected within the time required by the contract as set out in instruction No. 1, it will find for the plaintiff a sum equal to the interest at 6% per annum, from the time the depot should have been erected, as set out in instruction No. 1, to the time of the erection of said depot, upon the difference, if any, betAveen the fair market value of the lands owned by plaintiff, at said place, without the depot, at the time the depot should have been erected, as set out in instruction No. 1, and what their fair market value would have been with said depot thereon, and no more.
(4) In any event, the damages found for plaintiff must not exceed the sum of $10,000.00, the amount claimed in the petition.
(5.) If the jury believes from the evidence, that the defendant within such a time, as was reasonably necessary for the purpose after the completion of its road, so as to operate trains thereon, erected and thereafter maintained upon the land conveyed to it by defendant, a depot, which was reasonably adequate for the accommodation of the normal number of passengers and the transaction of the normal freight business, at said place, in the ordinary and usual way in which a depot is made use of, the law is for the defendant and the jury will find for it;
(6) Any number of the jurors, not less than nine may make a verdict, bnt, if less than the whole number make a verdict, each of those agreeing thereto should sign the verdict. If all the jurors agree to the verdict, it may be signed by any one of them.
For the reasons stated the judgment is reversed and cause remanded for proceedings not inconsistent with this opinion.