122 Mo. App. 38 | Mo. Ct. App. | 1906
The defendant railway company by one of its passing locomotives set fire to plaintiffs’ adjoining meadow and, as plaintiffs claim, destroyed it. They brought this action for damages.
The evidence in behalf of the plaintiffs tended to show that in the fall of 1904, they had reserved the pasturage on the meadow field in question for later use and that it was being so reserved on October 16th, when as they were about ready to turn their stock upon it, it was destroyed by defendant setting fire thereto. Not only was that growth of grass destroyed, but the roots of the grass were burned so as to ruin it and so as to require that it be reseeded, if desired for meadow. The following is the substance of an instruction given at plaintiffs’ instance, viz: that they could recover, the value of the grass destroyed by the fire; and the cost of reseeding the land; and also the loss of a crop of hay for the next (1905)-season, and the fall pasturage of such season.
We regard that part of the instruction allowing for the loss of a meadow crop and pasture for the next year after the fire as not the proper measure of damages. What the value of a crop to he produced in the future may be, is, ordinarily, too uncertain and conjectural to be the subject of judicial ascertainment. Favorable or unfavorable seasons for the growth of crops; favorable or unfavorable conditions of harvest; to say nothing of proper or improper cultivation, render the value of a future crop extremely problematical. [Chicago v. Huenerbein, 85 Ill. 594.] But the lands upon which crops can be grown have a value, known as a rental value, and such value is the true measure of damages. For people aré ready to pay rent and take the risk of a crop.
There is another phase of the case which appears to have had the attention of the respective counsel which will doubtless arise on retrial. It involves the rule of avoidable consequences. It was plaintiffs’ duty to protect themselves against loss, so far as they reasonably could. They could not, for instance, allow their field to lie untilled for several years and hold defendant for its rental value. They can only hold defendant for whatever time defendant’s act deprived them, as farmers, of the use of the field. In determining whether
Some technical objections were made to instructions assuming facts, etc. Whatever there may be in this, can, of course, be avoided at another trial. It would also be proper to submit questions of value as they were at the time when and the place where, destroyed.
The judgment is reversed and the cause is remanded.