143 Ky. 497 | Ky. Ct. App. | 1911
OPINION OP THE COURT BY
Reversing.
The appellant, Lonisville & Nashville Railroad Company, condemned 9 64-100 acres of land belonging to ap-pellee, Helen Morton Hall. It appealed from the award of the commissioners to the Hopkins Circuit Court. There the jury, hy its verdict, awarded appellee damages in the sum of $2,000. Prom the judgment predicated thereon, this appeal is prosecuted.
The first ground urged for reversal is that the court permitted John G-. B. Hall, the husband of appellee, Helen Morton Hall, the owner of the land condemned, to testify in her behalf. As Mrs. Hall did not testify, her husband was a competent witness,' for, by the express provision of section 606, subsection 1, of the Civil Code, an exception to the rule, that neither the husband nor the wife shall testify for the other, is made in those actions which might have been brought by or against the wife if she had been unmarried. In such actions, either, but not both, may testify.
The next error assigned is that the: court permitted John G-. B. Hall, to testify, over appellant’s objection, as follows:
“Then a great item in my estimation of the damage would be that it opens up a highway right through the very heart of the land for tramps. And when they get started through your land over that railroad — it is right in sight of the barn there; you can see the top of the barn there over the top of the corn, and without the corn it is in plain sight; tramps in my observation continually lodge in these barns around the railroads around the towns.”
The rule is that remote, imaginary, uncertain and speculative damages should he disregarded. ( Lewis on Eminent Domain, section 739.) Here we are asked to hold as an element of damage, the fact that the construe
The court also erred in permitting John Gr. B. Hall to make the following statement to the jury, over the objection of appellant:
“The running of the railroad by any man’s land, cultivated for anything, is a continual damage to him; frightens the horses and cattle in the field, and everything like that taken into consideration, it damages the land. ’ ’
In Lewis on Eminent Domain, section 739, we find the following:
“In case of a railroad through a farm the following were held not to be proper elements of damages; that laborers on the farm would likely stop work and look .at passing trains; that mules in use would likely be frightened and run away; that deleterious grasses might be scattered over the land and that live stock might get on the track and be killed.”
In our opinion, any injury that would result from frightening horses and cattle is. of such character that it can not be estimated with any degree of certainty, and is not, therefore, a proper element of damages.
Complaint is also made of the instructions given by the trial court. Without copying in full the instructions so given, it is sufficient to say that they allowed the jury to assess twice for certain elements of damage.
Eliminating the question of fencing, which appellant offered in court to construct and maintain, the court should have told the jury, in the first instruction, that in estimating the direct damages they should allow such a sum as they deemed from the evidence is the fair and reasonable market value of the three strips of land taken, considering them in relation to the entire tract; also such other direct damages, if any, as directly result
By another instruction the court should have told the jury that they should also take into consideration all the advantages and disadvantages which may be reasonably anticipated to result from the prudent construction and operation of the proposed railroad; and if the balance be against the owner of the land, then to the extent that such balance diminishes its market value, they should also find for defendant incidental damages in addition to the direct damages referred to in the first instruction; but that if the incidental advantages or enhancement of the land in value from the prudent construction and operation of the railroad equal or exceed the incidental disadvantages or depreciation in value, they should' find for the defendant only the direct damages as set out in' the first instruction. (See the cases of Broadway Coal Mining Co. v. Smith, 136 Ky., 725, and Big Sandy Ry. Co. v. Dils, 120 Ky., 563.)
Judgment reversed and cause remanded for a new trial consistent with this opinion.