143 Ky. 250 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
In condemnation proceedings instituted by the appel-lee company against the appellant, the judgment gave the appellee company the right of way through the lands of the appellant and authorized it to divert the waters of a creek front the channel in which it runs, and also provided that it should put in and maintain at points designated in the judgment two farm crossings over its line of railroad, to he used by the appellant, and — “should it appear to be necessary, defendant (appellant) is permitted to make one additional crossing over said line of railroad, at his own expense, subject to the supervision of the plaintiff’s company, the same to he located at a point near the location of the defendant ’s barn, near said line of right of way.”
Although section 341 of the Civil Code provides that a new trial shall not he granted on account of the smallness of damages in actions like this, yet when the smallness of damages are attributable to errors committed by the trial court affecting the substantial rights of the complaining party, the fact that the judgment cannot he reversed because of the small amount recovered does not preclude this Court from granting a new trial if it should be granted for other reasons appearing in the record. Pendly v. Illinois Central R. Co., 28 Ky. L. R. 1324.
The errors assigned by counsel for the appellant refer to the conduct of the company in respect to the crossings, and so it is not necessary to encumber the opinion with a statement of the facts concerning the damages claimed on account of the alleged negligence in respect to the creek and outlets thereto. We think the court properly presented to the jury the issues made as to the two crossings that the railroad company obligated itself to establish and maintain, and we do not understand that counsel for the appellant seriously complains that the court committed reversible error in the instructions re7 lating to these crossings. There was sharp conflict in the evidence, not only as to whether the railroad company performed the conditions imposed upon it in the condemnation proceedings but as to the amount of damage sustained by appellant on account of the alleged failure to construct and maintain these crossings. The serious complaint of counsel is directed to the action of the court in respect to the crossing that appellant had the right to erect. Appellant testifies in substance that when the railroad company failed and refused to maintain in a suitable condition for travel the two crossings it had erected, that he attempted to make the crossing the judgment gave him the right to establish. It appears that he
With the evidence in this conditon the court instructed the jury that—
“As to the crossing that the plaintiff had the right to construct under his contract and agreement with the defendant, the jury cannot find any sum for damages on that account, except they believe from the evidence that the defendant’s agents and servants, with force, prevented him from' making his crossing and crossing at the point where he had the right to make it.”
Counsel for the appellant asked the court to give the following instruction, which was refused—
“If the jury further believe that the third crossing was necessary in-the vicinity of plaintiff’s barn, and that defendant refused to allow plaintiff to construct it, and by force or duress prevented his use thereof, then, in such event, the law is for the plaintiff, and the jury should find-as set out in instruction Nó. II.”
It is also pointed out as error .that the trial judge more than once during the trial in ruling upon questions of evidence expressed to and in the presence of the jury his opinion of the law applicable to the case. If these verbal instructions had been erroneous expositions of the law, probably the jury might have been misled by them. But when the court came to instruct the jury he followed the trend of his remarks to the jury and attorneys and so we cannot say that his remarks were prejudicial.
It is further said that the court erred in telling the jury that:—
‘ ‘ If they believe from the evidence that the defendant constructed the two crossings referred to in the evidence and made them reasonably safe and serviceable to the plaintiff, and the defendant did not obstruct the plaintiff in the free use of said crossings, or did not tear them up and render them impassable for an unreasonable length of time, then they ought to find for the defendant on account of the damages claimed by the plaintiff for crossings.”
We do not see anything objectionable in this instruction. The court had practically, the same view of the law as counsel for the plaintiff, because one of the instructions offered by counsel and refused, reads:
“If the jury believe fronp, the evidence that the defendant constructed and maintained two reasonably safe and serviceable crossings at ,the- point contracted for, after the construction of said railroad, and they- further believe that the plaintiff’s crossing was not wilfully obstructed or stopped by force or duress of - the defendant,*254 then the jury should find for the defendant on the issues relating.to said crossings.”
Upon a consideration of the entire record we are of the opinion that no substantial error to the prejudice of the appellant was committed by the trial court. The jury evidently believed after Rearing all the evidence that appellant had only been damaged to the extent of $90.00, and they awarded him this amount. The judgment is affirmed.