88 Neb. 343 | Neb. | 1911
This is an appeal from the district court for Adams county. The action was instituted for the purpose of recovering damages alleged to have been sustained by reason of the construction of certain railroad tracks on the opposite side of the street in front of plaintiffs’ residence in the city of Hastings. The facts briefly stated are that the line and tracks of defendant’s railroad had previously been constructed about one block, or from 300 to 350 feet, south of and parallel to First street in said city. Between that street and the tracks was a block of lots with residence improvements thereon; that portion on the north side of the block fronting on First street. Plaintiffs’ residence is situated on the north side of said street, fronting to the south thereon. Prior to the commencement of this action the defendant obtained, by purchase or condemnation, all the lots south of First street, removed the dwellings and other buildings, trees and shrubbery therefrom, excavated the ground from 3 to 7 feet, placed 4 tracks thereon, and constructed its freight depot and platform on and against the curb line on the south •side of the street, the platform extending to within the width of an alley (about 20 feet) of a point south of and in front of plaintiffs’ residence, the tracks extending
The evidence shows the making of the change in defendant’s tracks from the main line to the point south of plaintiff’s residence substantially as alleged in the petition, and as above outlined. The plaintiffs are husband and wife. The title to the property is held in the name of the wife, and it is shown to be the homestead of both and their family, consisting of one daughter. The action having been brought in the names qf both the husband and wife, it' is contended that there is a misjoinder of parties plaintiff, it being insisted that the husband was improperly joined. There was no proof as to by whom the consideration for the purchase of the property was paid, but both plaintiffs testified that the property belonged to both. This evidence was objected to at the time it was offered, and an adverse ruling by the court is now assigned for error. The defendant asked for an instruction directing a verdict in its favor upon that ground, which was refused. As this direct issue was not presented by answer, it may be questioned whether or not it was waived. Donahue v. Bragg, 49 Mo. App. 273; Lass v. Eisleben, 50 Mo. 122. However, we are not prepared to say that the husband was not a proper party, even had there been no proof of his ownership. The residence was the homestead of the family — his home — and it was alleged and sufficiently proved that the full enjoyment of that home was interrupted. Should the objection
On the trial of the question of the extent of .damages sustained, the testimony offered and received was as to the difference in the value of the property immediately before and after the construction of defendant’s tracks and freight platform on the side of the street opposite plaintiffs’ dwelling. This was the proper measure of damages. Chicago, R. I. & P. R. Co. v. O’Neill, 58 Neb. 239. And in estimating the amount of damages sustained the jury may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser’s estimate of the market value of the property. Chicago, R. I. & P. R. Co. v. O’Neill, supra. And this includes injury from smoke, soot and cinders from passing engines where no part of the land is actually taken (Omaha & N. P. R. Co. v. Janecek, 30 Neb. 276), also, from noise and vibration caused by the operating of a railroad near the property, though not along a public highway (Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298). And such damages may be recovered if the tracks are on the opposite side of the highway. Lake Erie & W. R. Co. v. Scott, 132 Ill. 429, 8 L. R. A. 330.
Upon cross-examination of the witnesses who had testified to the diminution in value of plaintiffs’ property,
Certain witnesses were asked to state the condition of the block on the opposite side of the street before the appropriation of the block by defendant. This was objected to and the objection overruled, to which defendant excepted, and the ruling is now assigned for error. The answers were that the block was occupied by residences, trees, shrubbery, etc., . which added to the beáuty of the surroundings, and protected plaintiffs’ property from the smoke, soot, cinders and noise caused by the operation of the trains, engines and cars on the tracks to the south, all of which improvements had been removed and the ground appropriated to the use of the tracks within the excavation above referred to, thereby . rendering plaintiffs’ home of less value as residence property. This evidence seems to be of little, if any, importance and might have been well excluded, but the error in receiving it, if such there were, was cured by the giving of instruction numbered 2, given at the request of defendant, which is as follows: “The jury are instructed that if you find in favor of the plaintiffs, in arriving at the amount of your verdict, you must give consideration only to the claims of damage stated in the petition; that is, on account of noise, jarring, dust, smoke, soot, cinders and noxious odors caused by the operation of the railroad tracks and trains in connection with the freight depot, and you must
It is contended that the verdict of the jury, which is $1,100, is excessive. Eight witnesses were examined as to .values by plaintiffs, and two by defendant. There was considerable discrepancy in their testimony. Of the eight, two placed the diminution in value at $1,000, two at from $800 to $1,000, one at $900, one at $600, one at $800, and one at $1,200 to $1,400. Of the two witnesses for defendant, one testified there was no diminution, while the other placed it at "from $200 to $300. In addition to the testimony of witnesses, the jury were sent to view the premises and the information there obtained was considered by them. While we are persuaded that the verdict was the full measure of the damage proved, yet we cannot see that the excess, if any there is, calls for the interference of this court.
The judgment of the district court is therefore
Affirmed.