39 Kan. 638 | Kan. | 1888
The opinion of the court was delivered by
This action was brought to the district court of Sumner county on appeal by Eachel A. Hawk from the-report of the commissioners appointed by the judge of the district court of that county to condemn a right-of-way for the Le Eoy & Western Eailway Company through a portion of Sumner county and across an eighty-acre tract of land-belonging to Eachel A. Hawk. The commissioners had reported that appellant would suffer damages by reason of the-construction of the road through her premises, in the sum of $164; and at a trial, which was had with a jury on December 18, 1886, there was a verdict, assessing the appellant’s damages at $700. A motion for a new trial was overruled, and judgment was entered upon the verdict. The railway company has removed the cause to this court, and asks for a reversal upon three grounds: 1. Error in refusing to submit certain special questions; 2. In permitting incompetent witnesses to testify as to the value of the land; 3. In giving-improper instructions to the jury.
The court refused to submit the question: “How much was-the damage to the farm by reason of the water in the ditch,, thereby causing the adjacent land belonging to the plaintiff'
The court was further requested to submit to the jury the question: “What damage resulted to the farm by reason of the scaring of stock by the company’s cars?” But this was properly denied, as the jury were charged that they had no right to take into consideration in their estimate of damages any risks which the appellant might incur in the way of scaring her stock and teams, as such damages were speculative oniy.
The third question refused, and about which complaint is made, was: “ What are the several elements or sources of the damages which make up the aggregate to the answer to special question No. 10, and how much of said aggregate is made up by each of said elements or sources of damage?” Finding No. 10, referred to, is: “How much damage to the land by reason of the inconvenience for farming and using and occupying such land caused by the building of said railway through, over, and across said land?” Ans.: “$380.” This method of questioning a jury would serve no good purpose, and is not permissible. A. party desiring special findings should submit particular questions instead of general ones, and should not leave the jury to analyze and separately state the constituent elements of the damage suffered. The jury may be interrogated as to any particular element about which there was testimony offered, but to require them to distinguish and describe all the sources of damage and the amount allowed for each, would probably result in confusion, delay, and uncertainty. Such a procedure is not within the purpose of the statute, and has already been disapproved of by this court. ( L. T. & S. W. Rly. Co. v. Paul, 28 Kas. 816; Foster v. Turner, 31 id. 58.)
The next objection is, that the opinions of incompetent witnesses as to the market value of the land were received. These witnesses were farmers living in the neighborhood of the land in question, well acquainted with its situation and fertility, its advantages and disadvantages, and they were therefore qualified to state their opinions in regard to its value before and
The final objection made to a portion of the charge given to the jury is not available. No exception to the instruction was taken at the trial, nor does the record disclose that there was an exception, either general or special, to any portion of the charge; and hence its correctness is not now open to inquiry.
We find no error in the record, and therefore will affirm the judgment of the district court.
