23 Wash. 753 | Wash. | 1901
The opinion of the court was delivered by
Reavis, J.
There are two causes of action stated in the complaint. The first is the appropriation of nine feet of'plaintiff’s premises for a street; the second, negligence in grading the street. The answer to the first cause of action set up certain condemnation proceedings taken by the city a number of years before, and that the land by virtue of such proceedings had been appropriated. The answer to the second cause of action, after denials, was the former adjudication of damages in a suit for damages to plaintiff’s premises in the grading and improvement of the street.
The objections to the first cause of action are disposed of in Seattle v. Fidelity Trust Co., 22 Wash 154 (60 Pac.
*756 “The rule invoked, that the true rule of damages is the difference between the market value of the property taken or' damaged, before it was thus taken or damaged, and its market value after it was so taken and alleged to be damaged, has no application to the second cause of action set forth in the complaint, which pertains principally to the sloping. The law allows no such defense to an action founded on negligence or want of care — due care and proper skill. This is all I desire to say to you on the second cause of action set forth in the complaint.”
The defendant excepted to the instruction given upon the second cause of action in the following form:
“The defendant excepted to the above and foregoing charge for the reason that it was not an instruction upon the law of the dase. It had mr application to the law of the case, and had a tendency to mislead the'jury; and for the further reason that the court did not in its instructions define what the measure of damages would be under the second cause of action, but only instructed the jury that the measure of damages would not be the difference in value between the property before the injury was done and the value of the property immediately after the injury was done.”
The last exception taken is the only one deemed of any merit. It is perhaps unfortunate that the attention of the court and counsel in the progress of the trial seems to have been directed almost entirely to the legal import of the affirmative defenses to the two causes of action. The evidence sustaining the allegations of damage under the second cause of action was, as usually in proof of damages, somewhat conflicting in the value placed upon the premises before and after the grading was done; but substantial testimony supports the verdict, and, if a correct rule for the measurement of damages had been stated, the verdict should be sustained. The rule rejected was not wholly inapplicable. The instruction of the court, excluding the rule of damages of the difference between market value of
“The measure is not the cost of restoring the lot to its former situation, or building a wall to support it, but it is the diminution of value by reason of the -defendant’s act. In estimating the difference in the value of the land, the entire lot and the improvements on it may he taken as the value of the land alone. All the damages which may reasonably be apprehended to result from the wrong done are recoverable in one action.”
And 3 Sedgwick, Damages (8th ed.), § 939, thus states the rule:
“In an action to recover for injuries to the plaintiff’s land, occasioned by its falling in, in consequence of excavations made by the defendant in his own land adjoining, the measure of damages is not what it will cost to restore the lot to its former condition, or to build a wall to support it, but the amount by which the lot is diminished in value by reason of the acts of the defendant.”
See, also, Keating v. Cincinnati, 38 Ohio St. 141 (43 Am. Rep. 421); Williams v. Missouri Furnace Co., 13 Mo. App. 70.
It is urged with much force, however, by counsel for respondent, that notwithstanding this error the verdict is right and should be affirmed. But, as has been observed, there was substantial conflict in the evidence as to the estimate of damages by the witnesses, and we cannot say it affirmatively appears that there was no injury. We think, as a matter of legal right, the defendant was entitled to have the jury instructed properly upon the measure of damages, and upon this assignment of error alone the cause is reversed and remanded for a new trial.
Fullerton and Anders, JJ., concur.