172 Ind. 402 | Ind. | 1908
Appellant, an incorporated interurban railway company, filed, on July 23, 1906, its complaint in the office of the clerk of the Hendricks Circuit Court, thereby seeking to condemn and appropriate certain real estate sit
Appellant’s counsel criticise as erroneous that part of the instruction embraced in italics. They argue that any danger which might be incurred from the location and operation of appellant’s railroad over the land in controversy is too remote and speculative to afford a basis for a proper assessment of damages. They further insist that the court also erred in advising the jury by this instruction that in assessing the damages it might take into consideration “any other facts or things, * * * that may be either annoying or hurtful to the defendants.” That portion of the charge included in italics is manifestly wrong. Thereby the jury was given the liberty to take into consideration a class of damages of the nature of imaginary or speculative damages, or such as the occurrence of which would be quite remote. It is well settled that this class of damages cannot be taken into consideration in the assessment of damages in condemnation proceedings. Indianapolis, etc., Traction Co. v. Larrabee (1907), 168 Ind. 237, 10 L. R. A. (N. S.) 1003, and cases cited; Toledo, etc., R. Co. v. Wagner (1908), 171 Ind. 185; 2 Elliott, Railroads (2d ed.), §993.
In Indianapolis, etc., Traction Co. v. Larrabee, supra, an
Upon another view, the damages in the ease are unliquidated, and we cannot, upon the evidence, interpose our judgment in regard to the correctness of the assessment thereof. Monongahela River, etc., Co. v. Hardsaw (1907), 169 Ind. 147.
Other rulings of the court, relative to giving and refusing to give instructions, are complained of by appellant. These, in part at least, are determined by our decision upon the charge in controversy, and the other rulings, which can be said to be left undecided, possibly will not arise again upon another trial. Therefore we pass them without consideration.
For the error of the court in giving instruction three, the judgment below is reversed, with instructions to the court to grant appellant a new trial.