207 Ky. 776 | Ky. Ct. App. | 1925
Opinion of the Court by
Eeversing.
The opinion delivered on the first appeal of this case may be found in 196 Kentucky, page 679. It contains a statement of the facts, and principles there announced are the law of the case. A second trial resulted in a verdict of $225.00 per year for nine years for the destruction of crops. It reads: “We, the jury, find for the plaintiff temporary damages in the sum of $225.00 per year for nine years, which is $1,537.50, against the L. & N. E. E. Co., and $187.50 against the Director G-eneral of E. E.”
Judgment was entered on this verdict in accordance with its terms.
Appellant railroad company assigns several grounds for a reversal of the judgment. Its chief objection, however, to the judgment is that it is based upon erroneous instructions given by the court to the jury.
The evidence shows that appellee, Bennett, owns a farm, of which fifteen or sixteen acres are located in the bottom, lying along a small water course above the railroad fill or embankment through which there are two culverts about 4x4 feet in dimensions, intended to carry the water of the stream from appellee’s land through the embankment to its natural course below. The embankment did not extend entirely across the valley when first
The evidence shows that the cost of putting in a culvert of the size appellee estimates to be necessary to carry off the water in its natural course, would cost from $5,000.00 to $12,000.00. Appellee, Bennett, testifies there are about fifteen or sixteen acres of his bottom land subject to overflow, but the evidence does not show that all of this acreage is overflowed from water caused by ordinary rainfalls. It does show, however-, that some part of it is. He also testifies that this land is worth from $50.00 to $60.00 per acre. If the value be fixed at the highest amount stated by appellee Bennett, and there are sixteen acres of it, its entire value would not exceed $960.00. His evidence, however, does not prove there are as many as sixteen acres overflowed, nor does the evidence upon the whole show the land to be worth as much as $60.00 per acre.
There was, therefore, no evidence upon which to submit to the jury the question of whether the embankment was temporary or permanent and on which the jury might base a verdict such as it returned, awarding appellee, Bennett, temporary damages, for such damages could flow only from a temporary structure, or from a structure negligently constructed and which might be remedied or corrected at an expense not in excess of the reasonable value of the lands which were caused to overflow by the negligent construction of the embankment, if any. The court should not, therefore, have submitted to the jury the question of temporary damages, but should ou tlae facts proven have held as a matter of law that the embankment was a permanent one and that appellee, Bennett, was entitled to a recovery as for permanent injury, if at all, and so have instructed the jury. If the
The rule governing recovery in this case is fully set forth in the first opinion herein to which we have referred. These principles are adhered to in the more recent cases of Payne, Agent v. Smith, and Payne, Agent v. Lanham, 198 Ky. 564; see also L. & N. R. R. Co. v. Crain, 189 Ky. 436.
On another trial the court will instruct the jury as indicated in the opinion upon the first appeal confining appellee, Bennett, to recovery for permanent injury, once for all. The instructions given upon the last trial were entirely too long and involved and in several respects were erroneous. The court should instruct the jury, in substance, couched in proper words, that if it believes from the evidence that the embankment of the railroad company as now' maintained does not afford a reasonable escape for the water which falls on the land of appellee, Bennett, in ordinary rains and that by reason •of the embankment and the insufficiency of the culverts, or either, the water from ordinary rainfalls is caused to overflow or stand on the lands of appellee, Bennett, to find and return a verdict for him; but unless it so believes to return a verdict for the railroad company. To this ■should be added the measure of damages usually given in cases of injury resulting to lands from permanent construction such as embankments of railroads.
Defendant company was not entitled, upon the last trial, to a directed verdict in its favor.
For the errors pointed out the judgment must be reversed for a new trial consistent with this and the former opinion of this case.
Judgment reversed.