Flynt v. Chicago, Burlington & Quincy Railway Co., 38 Mo. App. 94

38 Mo. App. 94 | Mo. Ct. App. | 1889

Gill, J. —

This is an action for trespass alleged to have been committed by the defendant, in entering upon the land of plaintiff adjoining defendant’s railroad, and digging np and carrying away the grass and soil. On a trial had before the circuit court, a verdict and judgment was had for the plaintiff, and defendant appeals.

It is clear, from the record, that defendant was guilty of a technical trespass. In reconstructing a country crossing over defendant’s road, it appears that the hands thus engaged inadvertently got upon the plaintiff's land a few feet, and dug up the soil and scraped it over onto ■ the approach of the crossing. When informed that they were trespassing, the evidence tends to show that they returned a large part, if not quite all, of the dirt thus wrongfully taken away. However, the plaintiff brought this suit, and however small the matter in controversy may be, the parties are entitled to measure their rights by the law of the land.

I. We think the trial court committed error, as against the defendant, by refusing to give the following instruction, asked for by defendant’s counsel:

‘‘3. If the jury should believe that some employe of defendant did the digging and removing of dirt complained of by plaintiff, and that, afterwards, as soon as complaint was made of the matter, the said dirt was replaced so that no real or substantial injury has resulted to plaintiff, then plaintiff is only entitled to nominal damages.”

And in giving the following, on motion of plaintiff:

“2. They are further instructed that the replacing of dirt by the defendant company makes no difference in this case.’’

Evidence had gone to the jury to the effect that the soil had been replaced, and it was, we think, clearly admissible in mitigation of damages. 1 Sutherland on Damages, p. 238, et seq. .

II. So it was error to say to the jury, as it was in plaintiff’s first instruction, that if they found for the plaintiff they should “assess his damages at whatever sum they believe, from the evidence, he is entitled to,” etc. The court here left the jury in the dark on the measure of damages. They were left to determine for themselves just what manner of damages plaintiff was entitled to under the law. It would seem that, under the evidence and petition in this case, plaintiff was simply entitled to the value of the soil and grass removed, and the jury should have been so instructed. Mueller v. Railroad, 31 Mo. 262; Soulard v. St. Louis, 36 Mo. 546; Hickerson v. Mexico, 58 Mo. 61; 3 Sutherland on Damages, p. 372, et seq.

For the errors thus appearing in the record, the judgment must be reversed and cause remanded.

All concur.