172 Ind. 383 | Ind. | 1909
Lead Opinion
The court on its own motion gave ten instructions to the jury. Appellant’s counsel, at the proper time, tendered to the court, with a request to give the same to the jury, five instructions. The court refused each of these instructions, to which ruling appellant excepted.
The evidence in the case establishes, among others, the following facts: On the south side of appellees’ farm, which embraces seventy-seven acres, and out of which lands appellant’s right of way is appropriated, there is a public highway running east and west. Between this highway and the south line of the farm is located the right of way of the Vandalia Railroad Company, over .which said company has for many years propelled by steam both passenger- and freight-ears. The dwelling-house of appellee Branson, wherein she and her husband and the members of her family reside, is about two hundred feet north of the line of appellant’s railway. The strip of land appropriated is sixty feet wide, and runs east and west, adjacent to and parallel with the Vandalia railroád. Said appellee and the members of her family, in order to reach the highway on the south side of the farm, are compelled to cross appellant’s right of way and also the Vandalia railroad. There is a private crossing over the latter road which appellees maintain and use for the purpose of crossing over the latter road.
Evidence, over the objections of appellant, appears to have been given at the trial by appellee Branson showing how far distant from the before-mentioned crossing trains and cars
In view of the provisions of the statute, the cost of building permanent fences along the sides of appellant’s railroad would not constitute an element of damages to be considered by the jury in making the assessment. In fact, this is the prevailing rule in states wherein the railroad company is by statute required to fence its right of way. It will be presumed that the railroad company, within the time provided, will comply with the requirements of the law, therefore, under the circumstances in this case, the jurors should have been advised by the court that the cost of building fences along the sides of appellant’s railroad, after the expiration of the time allowed by the statute, should not be taken into consideration by them, or included in the assessment of damages. 2 Elliott, Railroads (2d ed.), §996; Chicago, etc., R. Co. v. Baker (1890), 102 Mo. 553, 15 S. W. 64; St. Joseph, etc., R. Co. v. Shambaugh (1891), 106 Mo. 557, 17 S. W. 581; Winona, etc., R. Co. v. Waldron (1866), 11 Minn. 515, 88 Am. Dec. 100; Jones v. Chicago, etc., R. Co. (1873), 68 Ill. 380; 4 Sutherland, Damages (3d ed.), §1072; 2 Lewis, Eminent Domain (2d ed.), §498; Mills, Eminent Domain (2d ed.), §212.
For the error of the court in refusing to charge as requested by appellant in its instructions two and three, the judgment is reversed and a new trial ordered.
Hadley, J., not participating.
Rehearing
It is true, as appellees claim, that in a document indorsed “Additional Points and Authorities,” filed on September 5, 1908, under the authority of rule twenty-one of this court, a statement is made that the instructions given and those refused were not filed with the clerk. Said rule twenty-one after providing for the filing of original briefs by an appellant and appellee and the reply brief on the part of appellant, then expressly declares that “no supplemental or ad
In the case last cited appellee based his petition for a rehearing upon the ground that the bill of exceptions upon its face disclosed that all of the evidence was not in the record. In considering the petition for a rehearing this court said: ‘ ‘ The objection thus urged to the bill of exceptions was not made, or in any manner referred to, by the appellee in his original brief, and is for the first time now presented by his petition for a rehearing. By the well-established practice of this court, the objection comes too late. We cannot now be called upon to reopen the cause for the purpose of inquiring whether there may not have been some defect in the record, of which the appellee might have availed himself, when he filed his original brief, but did not. The appellee is as much bound to present, in the first instance, all the questions relied upon by him, as is the appellant, and his failure to do so operates in the same way, against him, upon his application for a rehearing. ’ ’
Petition for rehearing overruled.