119 Mo. App. 492 | Mo. Ct. App. | 1906
Plaintiff sued the defendant for the value of eight or ten panels of board fence and the destruction of ten or twelve acres of timothy meadow, both of which were destroyed by fire communicated thereto by one of defendant’s locomotive engines on its line of railroad which passes through his farm. The jury returned a verdict for the plaintiff and defendant sues out a writ of error. On the trial there was no evidence introduced tending to prove the value of the fence a.t the time of the fire nor what it would cost to replace it, nor was there evidence tending to show the value of plaintiff’s farm with the meadow at the time and prior to the fire and its value thereafter, so that the jury could ascertain the difference in value before and after the fire. All of the evidence introduced by the plaintiff on this question, and defendant introduced none, was the opinion of witnesses. One witness after another, over the objection and exception of defendant was permitted to give his opinion of the amount of damages the plaintiff had suffered. This was error.
1. To allow a witness to give his opinion as to the amount of damages sustained in any given case, is, as a general rule, usurping the province of the jury, and determining for them the question of which the jury is the peculiar judge. And this is especially true in-cases sounding in damages. [Spencer v. Met. Street Railway Co., 120 Mo. 154, 23 S. W. 126; Watkins v. St. L. & I. M. Ry. Co., 44 Mo. App. 245; Sallee v. St. Lonis, 152 Mo. 615, 54 S. W. 463.]
2. The rule for the admeasurement of the damage pertaining to the destruction of the several panels of
3. The fire was in March. The evidence shows that the timothy roots were killed by the fire so that it produced no crop the succeeding season. In such case the damage is to the inheritance, and the measure of the plaintiff’s recovery for such killing of the grass roots is the injury done to the inheritance; and the true rule thereon is the ascertainment of the value after the injury has been done, the difference between which is plaintiff’s loss, and the measure by which the defendant should compensate him therefor. [Gates v. C. & A. Ry. Co., 44 Mo. App. 488.]
There was no word of testimony introduced tending to prove the value of the fence; not even a witness gave his opinion as to the value separately of the fence destroyed, which no doubt would have been competent inasmuch as it is held as an exception to the general rule that the opinions of such witnesses as are familiar with the character and value of the property are competent on the question of such value. [Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645; Thomas v. Mullincrodt, 43 Mo. 65.] And no witness testified as to the depreciation in value
4. Inasmuch as the case will be remanded for further proceedings, it is not improper to say that the court’s instruction to the jury on the measure of damages was erroneous as well. The jury were told: “You should assess his damages at such sum as you shall believe and find from the evidence was the reasonable value of such fence and timothy grass and meadow so burned up or destroyed.” While this was proper enough as to the measure of recovery pertaining to the fence, it was an erroneous guide as to the duty of the jury with respect to the admeasurement of the recovery for the meadow destroyed, it not being a crop of hay but rather destruction of the grass roots and resultant injury to the inheritance and the measure of such injury to the inheritance is the difference in the value of the premises before and after the fire.
For the reasons given, the judgment will be reversed and the cause remanded.
