61 Neb. 49 | Neb. | 1900
The plaintiff, defendant in error, recovered a judgment, in tlie trial court for the sum of $1,064.85, as and for damages on account of the ■ destruction of a large number of bearing cherry trees by fire alleged to have been wrongfully and negligently caused by the defendant—plaintiff in error—in the operation of its locomotives attached to its railway trains.
It is urged by counsel for defendant that the judgment should be reversed because of alleged erroneous instructions given and refused, and also for the reason the evidence is insufficient to support a recovery. We are precluded from reviewing the instructions excepted to, which are argued in this court for the first time, for the reason that the same were not pointed out or called to the attention of the trial court in the motion for a new trial. Counsel argue that having assigned as one of their grounds for a new trial “errors of law occurring at the trial and duly excepted to by the said defendant at the time,” the same is sufficient to raise the question as to the correctness of the ruling of the court on instructions given and refused. We think the rule is otherwise firmly established by the prior utterances of this court on the subject. The assignment is too general to call the attention of the trial court to any particular instruction. If it can be said to apply to all, it is to all instructions to which exceptions were taken at the trial, and is equivalent to assigning as error the giving of instructions on, masse. Such assignment, to be sustained, must be sound as to all instructions to which exceptions are taken. In the case at bar, there is no claim of error as to several instructions excepted to, the error,.if any, being waived, their giving is presumably correct; and, applying the rule as to assigning error to instructions en masse, the objections can not be sustained. This as
In the case at bar, the same principle is involved with reference to the introduction of evidence, and its sufficiency to support the verdict, as in the ruling on the instructions of which complaint is made, and a proper conclusion as to the one necessarily disposes of the other on its merits.
On the trial of the case the plaintiff was permitted to prove the difference in the value of the trees, for the injury and destruction of which the action was instituted, immediately before and after the fire, as the measure of damages sustained. It is insisted by counsel for defendant that the true rule by which the damages are to be measured is the difference in the value of the real estate upon which the trees were growing immediately before and after the injury complained of; and a number of authorities in support of the proposition are cited. It is true that in many jurisdictions the rule contended for by counsel has been adopted; but we think this court is committed to the doctrine that a recovery may be had under evidence showing the value of fruit trees, shade or ornamental trees, or young growing timber, as they stood as live, growing trees before the injury complained
It is argued that a different rule should be applied to the loss of fruit trees than that of growing timber, and that for that reason the prior utterances of this court with regard to injury to growing timber do not necessarily determine the questions involved in the present controversy. We think the same rule as to measurement of damages should govern in both cases. In this we are supported by the authorities cited by defendant. Dwight v. Elmira, C. & N. R. Co., 30 N. E. Rep. [N. Y.], 398. Being committed to the rule that a recovery may be had' by ascertaining, as the amount of damages, the difference in value of the fruit trees as standing immediately before and after the injury complained of, we observe no sufficient reason for departure therefrom, and upon such authority hold the evidence objected to as competent and a.dmissible for the purposes for which it was intended, and sufficient to support the verdict and judgment ren
The judgment of the district court is
Affirmed.
