105 Ky. 609 | Ky. Ct. App. | 1899
delivered the opinion' of the court.
These three appeals are prosecuted from a judgment for $2,000 in favor of appellee for injury to his property by appellants. The suit was filed October 16, 1893. It is alleged, in substance, in the petition, that the appellant the Covington & Cincinnati Elevated Railroad, Transfer & Bridge Company owns an elevated railroad operated by it and the other two appellants as an approach to a bridge across the Ohio river between Covington and Cincinnati, that this railroad runs back of appellee’s property, and that by reason of the jarring' of the earth, the noise, and soot an.d cinders thrown upon his property, it has been damaged in the sum of $6,000. The proof shows that the
The rule is elementary that a party can not split a cause of action and sue upon part at one time, and the remainder at another. It is also well settled in this State that the injury from the construction of a railroad is permanent and enduring, and that a single recovery must be had for all the damages alleged to result from it if properly operated; that, in effect, the plaintiff consents for the defendant to continue for all time to use the property for the purposes intended, and to accept the judgment in satisfaction thereof. E., L. & B. S. R. R. Co. v, Combs, 10 Bush, 293 ; J., M. & I. R. R. Co. v, Esterle, 13 Bush, 667; L. & N. R. R. Co. v. Orr, 91 Ky., 109 [15 S. W., 8].
Under the rule as settled in these cases, we are constrained to hold that the appellee recovered in the former action for a part of the injury resulting to him from the construction of this railroad, that the whole of this, injury constituted one entire cause of action, and that a recovery for a part, so far as appears from this record, barred an action for the remainder. The closing of the alley or its obstruction, was a part of the injury plaintiff sustained from the building of the railroad. The damages to the incorporeal right of way and the direct damages to the property from the construction of the railroad at that point all grew out of the same act or transaction, and could not be separated by the plaintiffs so as to be the subject-matter of different suits.
The appellants moved the court to instruct the jury that they had the legal right to run and operate their railroad in a careful and prudent manner, and that there could be no recovery for any injury to plaintiff’s property
The record of tbe case referred to is not before us. We have only tbe pleadings to guide us in determining tbe effect of tbe judgment. . There is no plea of estoppel, and, if appellant’s position as shown by' tbe record in that case was inconsistent with its position in this action, it should be pleaded, to avoid tbe effect of that judgment.
Tbe court instructed tbe jury that if tbe appellants ran their locomotives and trains over tbe bridge so that tbe noise therefrom kept tbe occupants thereof from sleep at night, or so that sparks, smoke, and cinders were emitted from tbe engine and fell upon tbe bouse and yard or into tbe bouse, they should find for tbe plaintiff tbe reasonable damages be sustained thereby to the' permanent and enduring value of' the premises. There was proof that when tbe wind was from tbe direction of tbe bridge tbe smoke and cinders were much worse than at other times, and that the bridge was about seventy feet from appellee’s bouse.
In Henderson Belt Line R. R. Co. v. Dechamp, 95 Ky., 224 [24 S. W., 606], this court said: “Such damages as were
The court should have qualified this instruction so as to exempt from its operation smoke or cinders that would not fall on the property except for the force of the wind; and he should not have singled out the noise keeping the occupants from sleep at night, for this may have misled the jury, and drawn away their attention from the single inquiry in the case, which was the diminution in value of the plaintiff’s proparty by reason of the wrong complained of; and the personal inconvenience of his family, or his own loss of business, could not be recovered for.
The judgment is therefore reversed, and the cause remanded for further proceedings consistent with this opinion.