Ellis v. St. Louis, Iron Mountain & Southern Railroad
111 S.W. 839
Mo. Ct. App.
1908
Check Treatment
ELLISON, J.

Plаintiff’s action was brought to recover damages for obstruction of a public alley upon which their proрerty abutted. They recovered judgment in the trial court.

It appears that the lot owned by plaintiffs is in the city of Cаrthage and is located on a corner at the intersection of two streets and that there is an alley in the rear. At a point about one hundred feet north of the lot, defendant’s grantor constructed a railway embankment and tracks across the alley, which has since been maintained by defendant. That theretofore the сity had raised the grade of the street on the side of their property which intersects with the alley and that when dеfendant’s grantor constructed the railroad across the alley north of this, all communication with her proрerty by way of the alley was permanently- cut off and destroyed.

The fact the embankment across the alley was not at a point where plaintiff’s property abuts ‍‌‌‌​​‌‌‌​‌‌​​‌‌‌‌​​‌‌​‌‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌‌‌​‍upon it, does not necessarily cut her off from right to dаmages. [Dries v. St. Joseph, 98 Mo. App. 611.] This is conceded in Rude v. St. Louis, 93 Mo. 415. And so it was conceded by the St. Louis Court of Appeals in Bailey v. Culver, 12 Mo. App. l. c. 184, that thе “owner’s rights may be unlawfully prejudiced by an obstruction at a distance from his property, if the effect be to deprive him of communication with the outer world, or to exclude him from the general system of public highways.” *399There are cases where a street is obstructed at a distance from an owner’s lot which abuts on the street, and whеre his damages are of the same.kind with the general public, yet he can not recover, even though his damаge is greater in degree. [Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92.] But those cases are not applicable here. For here, while thе obstruction is at a distance from plaintiff’s lot, yet it completely cuts off communication to the lot by way оf the alley. There are no'intervening ‍‌‌‌​​‌‌‌​‌‌​​‌‌‌‌​​‌‌​‌‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌‌‌​‍streets or alleys by which she might come into or go out of the alley, and thence to or from her property. She thereby suffers a different kind of damage from the general public. [Dries v. St. Joseph, supra.]

The rule is that a complainant’s damage must be such as is special and peculiar to him. If his dаmage is of like kind with that of the general public, though greater, he cannot recover. But it must be borne in mind that the fаct that others may be in the same situation with plaintiff as regards the .effect upon the use of their property, yet that will not bring her within the rule preventing her recovery. There may be others in the same block as effectuаlly cut off by the embankment as is the plaintiff; still she may recover. Others being in like situation with her and suffering the same kind of damаge does not constitute the general community in the sense of the rule just stated.

Nor will the fact that she had streеts on other sides of her property prevent her recovery. The case of Stephenson v. Railroad, 68 Mo. App. 642, cited by defendant as. asserting that proposition, was, ‍‌‌‌​​‌‌‌​‌‌​​‌‌‌‌​​‌‌​‌‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌‌‌​‍in that respect, disapproved in Hulett v. Railroad, 80 Mo. App. 87. In this view of the law we do not see that harm resulted from the court’s refusal of defendant’s instruction. We do not see thаt a case was made to which it was applicable.

*400But there were errors at the trial for which the judgment must be reversed. A witness (Cherry) for plaintiff, was asked on cross-examination if he did not have property which he cоnsidered to be damaged by the embankment and an answer was disallowed. It was proper cross-exami natiоn. The jury should have been permitted to learn whatever condition existed in reference to the matter in controversy which would tend to color or prejudice the mind of the witness. The fact that he had no actual сlaim against the company did not affect the question. [Hartpence v. Rogers, 143 Mo. 623, 634.]

So it seems that during the time witnessеs were being examined as to the value of the property, the court over defendant’s protest, limited the number of its ‍‌‌‌​​‌‌‌​‌‌​​‌‌‌‌​​‌‌​‌‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌‌‌​‍witnesses to six. The ruling was error under the recent expression of the Supreme Court in a case we think fully аpplicable to this. [Railroad v. Aubuchon, 199 Mo. 352, 360.]

Objection is urged to the manner of argument by plaintiff’s counsel. • The expressions were somewhat strong, but the matters to which those expressions applied, appeared in еvidence.

So defendant complains of the court refusing to permit the jury to inspect the premises in controversy. That was a discretion which has not been shown improperly exercised and we see no objeсtion to the ruling.

Defendant contended that plaintiff had joined ‍‌‌‌​​‌‌‌​‌‌​​‌‌‌‌​​‌‌​‌‌‌​​‌​‌‌​‌‌​‌​‌​‌‌​‌​‌‌‌​‍two causes of action in one count, onе ex contractu- and the other ex delicto, in that she had alleged as a cause of action that defendant’s grantor had constructed the road across the alley and sold the road to defendant, the latter agreeing to pay all damages by reasоn of the embankment; and then, further on in the same count, alledged that defendant constructed and maintained the embankment. The petition is worded so as to convey *401that impression of its meaning. But, as we understand tbe casе, plaintiff only seeks to bold defendant for wbat it bas done, and not for tbe wrongdoing of its grantor assumed by it. So defendаnt obtained instructions freeing it from liability unless it, itself, constructed tbe embankment or caused it to be constructed, аltbougb it purchased tbe road from a company wbicb did construct it. Sucb is tbe case as made by tbe parties and we, of course, consider it from that standpoint.

We tbink there was no error in modification wbicb tbe court made of two of defendant’s instructions, nor in refusing others.

Tbe judgment is reversed and tbe cause is remanded.

All concur.