Chicago, Peoria & St. Louis Railway Co. v. Leah

38 N.E. 556, 152 Ill. 249, 1894 Ill. LEXIS 1443

• Court: Illinois Supreme Court
• Decided: October 22, 1894
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court:

This is an action on the. case, instituted by appellee, against appellant, in the circuit court of Madison county, to recover damages for the alleged injury resulting to him by the construction and operation of appellant’s railroad. The jury found a verdict in favor of appellee, and assessed his damages at $1200. Judgment was rendered accordingly. Prom that judgment appellant appealed to the Appellate Court, and from the judgment of affirmance in the Appellate Court prosecutes this appeal.

It appears that appellee is the owner in fee of a fraction over three and one-half acres of land in the city of Edwardsville, on which are situated two frame residence buildings; that the land fronts on a small street twenty feet wide, known as Lynch street; that appellant’s railroad track crosses said Lynch street diagonally, opposite appellee’s premises, from which it is distant, at the nearest point, only six and one-half feet; that said Lynch street affords the only approach to the premises, and that but a short distance therefrom- appellant constructed and operates a switch.

Appellant’s first contention is, that it was error in the trial court to permit the jury, over its objection, to view the premises. The action of the court in permitting such inspection by the jury does not appear to have been excepted to, by anything set forth in the bill of exceptions. Had such an exception been taken, it could only-have been made a part of the record by embodying it in the bill of exceptions. We cannot, therefore, consider this assignment of error. Martin et al. v. Foulke et al. 114 Ill. 206.

It is next contended that it was error in the trial court to admit evidence in regard to noise made by appellant’s trains in passing and re-passing appellee’s premises, and to permit witnesses to testify as to what effect the “passing and re-passing of appellant’s trains would have upon appellee’s property, taking everything into consideration.” Appellant argues this claim on the theory that damages can be recovered only on account of a direct physical injury to the.corpus or subject of property. This is a misapprehension of the law. It was material and proper that appellee should be permitted to prove the special disadvantages and annoyances which interfered with the full enjoyment by him of that us.e and benefit of his property to which the law entitles him. Rigney v. City of Chicago, 102 Ill. 64; Chicago, Burlington and Northern Railroad Co. v. Bowman et al. 122 id. 595 ; Lake Erie and Western Railroad Co. v. Scott, 132 id. 429 ; Springer v. City of Chicago, 135 id. 552. We think'the evidence complained of was properly admitted.

Appellant’s last contention is in regard to an instruction, which it claims was erroneously given in behalf of appellee. Upon examination of the record, however, we find that the instruction in question was asked by appellant and was given in its behalf. Appellant, therefore, cannot be heard to complain.

We find no error in the record, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.