Yazoo & Mississippi Valley Railroad v. Hubbard

85 Miss. 480 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

■ The granting of the peremptory instruction to award, the statutory penalty for failure to maintain a necessary and proper cattle guard was correct. The contention mainly relied on by appellant is that there was no specific proof of actual damage sufficiently definite to warrant a jury in returning a verdict in any amount. The witness Hubbard testified that twelve acres of corn had been twice completely destroyed — once when the Crop was growing, again after the corn was matured; that he estimated the loss in bushels at five hundred; that the crop of cotton had been damaged to the extent of fifteen or seventeen five-hundred-pound bales; that all of the corn belonged to appellee, and was worth sixty-five cents per bushel; that one-third of the cotton would have been the property of appellee if gathered, and was worth from ten to eleven and one-half cents per pound; and that at least one-half of the entire loss was directly attributable to the depredations of cattle that entered the field over the ineffective cattle guard. Further on, just before the close of his testimony, he stated that the value of the corn crop at the time of its destruction was $250, and that the damage to the cotton crop caused by the cattle was between $700 and $800. This testimony was accepted by the jury, and we think it ample to sustain a judgment for the amount which was allowed to stand in this case. Mathematical certainty as to the amount of damage suffered is not required in actions of tort of this character. The amount of damage inflicted by injury to, or destruction of, property is, at last, like the value of the property itself, “only a question of estimation, varying as the individual judgments of men may differ.” For this reason the law commits to the jury the duty of arriving at the amount of damage suffered, and this can only be arrived at by an estimation based upon the testimony of the witnesses. Damages must be certain both in their nature and the cause from which they proceed; but the amount in cases like the one here presented- — where a crop has been partly destroyed while growing, and partly after maturity, but before gathering — must, from the very nature of things, be calculated from statements detailing to the jury the exact situation of affairs as they existed at the time of the injury or destruction. Any other rule would debar the plaintiff from all chance of recovery in many cases of similar character. The conclusion announcéd above is approved by text writers of most eminent distinction. 1 Sedgwick on Damages, p. 246. In the recent edition of the. very valuable work of Sutherland on Damages, •the rule is thus stated (p. 339) : “If’ a growing crop is destroyed, it can, of course, never be shown with absolute certainty that but for its destruction it would have matured, nor that one party who is stopped by the other in the performance of a special contract would otherwise have proceeded to a complete execution of it so as to entitle himself to its full benefits. Nor is it a matter of law that the jury shall assume that the crop would have matured or that the contract would have been fulfilled. The jury may estimate, with the aid of the testimony, the value of the crop at the time of its destruction, in view of all the circumstances existing at any time before the trial, favoring or rendering doubtful the conclusion that it would attain to a more valuable condition, and all the hazards and expenses incident to the process of supposed growth or appreciation.” The crop no longer being in existence, its value could only be arrived at by calculation based on competent proof. We think that course was followed in the case at bar.

Affirmed.