[661]*661Opinion op the Court by
Judge Settle.
— Affirming.
This is an appeal from a judgment for $250, damages awarded appellee by the verdict of a jury returned against appellant on account of its failure to rebuild, according to its alleged undertaking, a fence separating its right of way from appellee’s lands, which had been destroyed by the wrecking of one of its freight trains in March, 1907. In cleaning the wreck appellant piled and burned the debris on the fence in question, and also a portion of a fence owned by appellee individually, which partly inclosed his meadow. The petition, as amended, contained the averments that at the time of the original erection of the fence between appellant’s right of way and appellee’s meadow, the former’s right of way, tracks, and franchise were owned by its vendor, the Newport News & Mississippi Yalley Railroad Company, and that, by agreement made 20 years ago between that company and appellee, the former furnished the wire and the latter the posts and labor necessary to erect the'fence between the right of way and the meadow, but by the same agreement the Newport News & Mississippi Yalley Railroad Company was to be at the labor and expense of thereafter keeping in repair and maintaining the fence, which it did as long as it owned the railroad, and that since appellant acquired the railroad, property, and franchise of the Newport News & Mississippi Valley Railroad Company, it had recognized it to be its duty to keep in repair and maintain the fence in question, and had done so free of cost or trouble to appellee; that'at the time the fencing, ref erred to was destroyed by appellant’s servants in burning the debris from the wrecked train, its destruction was [662]*662consented to by appellee, in consideration of appellant’s undertaking to rebuild the division fence within a week, and in that time to furnish appellee for the reconstruction of his individual fence woven wire, instead of the barbed wire formerly composing its material, and that appellant, instead of furnishing the wire for appellee’s individual fence or rebuilding the division fence in a week as promised, did not do so for five weeks, during which time appellee’s meadow remained unfeneed and exposed to the depredation of stock, which so devasted and injured it as to destroy the grass and compel appellee to go to the expense of resowing it; that at the time of the making of the above contract between appellant and appellee it was agreed that appellee should waive any claim for damages which might result to him by the trespassing of stock on his meadow for a period of one week following the destruction of the fence. The amount of damages claimed by appellee for the violation by appellant of its contract was $400, but, as before stated, the jury by their verdict only allowed him $250. Although appellant’s answer traversed the averments of appellee’s petition as amended, it admitted that the fence separating its right of way from appellee’s meadow was a division fence, but alleged that after its destruction no notice to it to repair or reconstruct the same was given by appellee as required by the statute; that the contract between appellee and the Newport News & Mississippi Valley Railroad Company under which the fence between the right of way and appellee’s meadow was originally constructed was not in writing or recorded, and was therefore void under the statute of. frauds, and that appellant, when it purchased the roadbed, property, and franchise of the [663]*663Newport News & Mississippi Valley Railroad Company, had no notice of such agreement, and was not bound thereby. The affirmative matter of appellant’s answer was controverted by reply, which completed the pleadings.
Appellant’s first contention is that it should have been given a new trial, and is now entitled to a' reversal of the judgment appealed from, because of the circuit court’s refusal to grant it a continuance of the case on account of the absence, by reason of illness, of A. Murphy, appellant’s agent with whom appellee claimed to have made the contract with respect to the rebuilding of the division fence in question and the furnishing to appellee of wire for the rebuilding of the fence of which he is .the owner. The importance of Murphy as a witness, as well as the fact that1 appellant was duly diligent in the steps taken to procure his attendance at the trial, must be conceded, but the two affidavits upon which the motion for the continuance was based and renewed set forth with great particularity all the facts to which it was claimed he would, if present, testify, and if he had testified in person, his státements could not have been more contradictory of appellee’s testimony than were those attributed to him by the affidavits. The last affidavit setting forth certain matters of evidence in addition to those contained in the first, to which it was insisted he would also testify, was filed after appellee had given his testimony, and it is not to be presumed that any material fact necessary to appellant’s defense that may have been omitted from the first affidavit, and was believed by the latter’s able counsel to be in Murphy’s possession, was left out of the last affidavit. Besides, the claim of appellee that a contract had been [664]*664made by him with Murphy, as appellant’s agent, as to the rebuilding of the fence and the full terms of such contract, was all set out in the petition as amended, and must therefore have been known to appellant’s counsel when they, in advance of the trial, talked with and obtained from Murphy his version of what occurred between appellee and himself at the time the contract was entered into, if any was made between them. The case was not one in which appellant’s counsel were in the dark as to what appellee’s testimony on the trial would develop. They do not now, in argument, claim to have been surprised by anything occurring during the trial that the personal presence or oral testimony of Murphy would have prevented or enabled them to guard against. Necessarily the question of whether a continuance should or should not be granted in a given ease is one that must, in large measure, be left to the discretion of the trial court. For a litigant or his counsel to merely state that the personal attendance of a witness is necessary will not require the court to grant a continuance that his attendance may be procured. If the facts presented and within the knowledge of the court are such as to make it reasonably certain that a trial without the personal presence of the absent witness would be less likely to result in injustice than would a continuance, the continuance should be refused. It is a rule of this court not to interfere with the action of the trial court in the matter of granting or refusing a continuance, unless convinced that that court has abused its discretion, and, being unconvinced that there was in this case such an abuse of discretion, we are unwilling to say that the trial court-committed an error in refusing appellant a con[665]*665timmnce on account of the absence of the witness Murphy.
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[661]*661Opinion op the Court by
Judge Settle.
— Affirming.
This is an appeal from a judgment for $250, damages awarded appellee by the verdict of a jury returned against appellant on account of its failure to rebuild, according to its alleged undertaking, a fence separating its right of way from appellee’s lands, which had been destroyed by the wrecking of one of its freight trains in March, 1907. In cleaning the wreck appellant piled and burned the debris on the fence in question, and also a portion of a fence owned by appellee individually, which partly inclosed his meadow. The petition, as amended, contained the averments that at the time of the original erection of the fence between appellant’s right of way and appellee’s meadow, the former’s right of way, tracks, and franchise were owned by its vendor, the Newport News & Mississippi Yalley Railroad Company, and that, by agreement made 20 years ago between that company and appellee, the former furnished the wire and the latter the posts and labor necessary to erect the'fence between the right of way and the meadow, but by the same agreement the Newport News & Mississippi Yalley Railroad Company was to be at the labor and expense of thereafter keeping in repair and maintaining the fence, which it did as long as it owned the railroad, and that since appellant acquired the railroad, property, and franchise of the Newport News & Mississippi Valley Railroad Company, it had recognized it to be its duty to keep in repair and maintain the fence in question, and had done so free of cost or trouble to appellee; that'at the time the fencing, ref erred to was destroyed by appellant’s servants in burning the debris from the wrecked train, its destruction was [662]*662consented to by appellee, in consideration of appellant’s undertaking to rebuild the division fence within a week, and in that time to furnish appellee for the reconstruction of his individual fence woven wire, instead of the barbed wire formerly composing its material, and that appellant, instead of furnishing the wire for appellee’s individual fence or rebuilding the division fence in a week as promised, did not do so for five weeks, during which time appellee’s meadow remained unfeneed and exposed to the depredation of stock, which so devasted and injured it as to destroy the grass and compel appellee to go to the expense of resowing it; that at the time of the making of the above contract between appellant and appellee it was agreed that appellee should waive any claim for damages which might result to him by the trespassing of stock on his meadow for a period of one week following the destruction of the fence. The amount of damages claimed by appellee for the violation by appellant of its contract was $400, but, as before stated, the jury by their verdict only allowed him $250. Although appellant’s answer traversed the averments of appellee’s petition as amended, it admitted that the fence separating its right of way from appellee’s meadow was a division fence, but alleged that after its destruction no notice to it to repair or reconstruct the same was given by appellee as required by the statute; that the contract between appellee and the Newport News & Mississippi Valley Railroad Company under which the fence between the right of way and appellee’s meadow was originally constructed was not in writing or recorded, and was therefore void under the statute of. frauds, and that appellant, when it purchased the roadbed, property, and franchise of the [663]*663Newport News & Mississippi Valley Railroad Company, had no notice of such agreement, and was not bound thereby. The affirmative matter of appellant’s answer was controverted by reply, which completed the pleadings.
Appellant’s first contention is that it should have been given a new trial, and is now entitled to a' reversal of the judgment appealed from, because of the circuit court’s refusal to grant it a continuance of the case on account of the absence, by reason of illness, of A. Murphy, appellant’s agent with whom appellee claimed to have made the contract with respect to the rebuilding of the division fence in question and the furnishing to appellee of wire for the rebuilding of the fence of which he is .the owner. The importance of Murphy as a witness, as well as the fact that1 appellant was duly diligent in the steps taken to procure his attendance at the trial, must be conceded, but the two affidavits upon which the motion for the continuance was based and renewed set forth with great particularity all the facts to which it was claimed he would, if present, testify, and if he had testified in person, his státements could not have been more contradictory of appellee’s testimony than were those attributed to him by the affidavits. The last affidavit setting forth certain matters of evidence in addition to those contained in the first, to which it was insisted he would also testify, was filed after appellee had given his testimony, and it is not to be presumed that any material fact necessary to appellant’s defense that may have been omitted from the first affidavit, and was believed by the latter’s able counsel to be in Murphy’s possession, was left out of the last affidavit. Besides, the claim of appellee that a contract had been [664]*664made by him with Murphy, as appellant’s agent, as to the rebuilding of the fence and the full terms of such contract, was all set out in the petition as amended, and must therefore have been known to appellant’s counsel when they, in advance of the trial, talked with and obtained from Murphy his version of what occurred between appellee and himself at the time the contract was entered into, if any was made between them. The case was not one in which appellant’s counsel were in the dark as to what appellee’s testimony on the trial would develop. They do not now, in argument, claim to have been surprised by anything occurring during the trial that the personal presence or oral testimony of Murphy would have prevented or enabled them to guard against. Necessarily the question of whether a continuance should or should not be granted in a given ease is one that must, in large measure, be left to the discretion of the trial court. For a litigant or his counsel to merely state that the personal attendance of a witness is necessary will not require the court to grant a continuance that his attendance may be procured. If the facts presented and within the knowledge of the court are such as to make it reasonably certain that a trial without the personal presence of the absent witness would be less likely to result in injustice than would a continuance, the continuance should be refused. It is a rule of this court not to interfere with the action of the trial court in the matter of granting or refusing a continuance, unless convinced that that court has abused its discretion, and, being unconvinced that there was in this case such an abuse of discretion, we are unwilling to say that the trial court-committed an error in refusing appellant a con[665]*665timmnce on account of the absence of the witness Murphy.
It is insisted for appellant that the trial court erred in permitting appellee to prove any injury to his meadow other than such as resulted to the growing crop of grass from the trespassing of stock; and also in permitting proof of what, it cost to resow the meadow, it being argued that the mere cost of restoring the meadow was not the measure of damages, and as to that matter it was the duty of appellee, upon appellant’s failing to comply with its contract within the week, to have restored the fences himself at reasonable cost, and thereby minimize the damages for which appellant’s violation of the contract made it liable. We think appellee was entitled to prove not only that the crop of grass for that year was injured by trespassing stock, but also any other injury to the meadow or soil, such as that the trampling of the soil destroyed the roots of the grass, and wholly destroyed it for the purposes of a meadow. The destruction of the meadow being the injury complained of, its restoration as a meadow was a thing to be desired and carried out by appellee; and, in this view of the matter, if, as the proof tended to show, the only way to restore the meadow was to plow and resow the ground, proof as to the reasonable cost of such plowing and resowing was properly admitted. Indeed, if the meadow was destroyed by trespassing stock, the reasonable cost of restoring it would seem to be the true criterion for estimating appellee’s damages, if the destruction of the meadow resulted from appellant’s violation of a contract made with appellee to restore the fences. We do not think appellee under the facts of this case can be held culpable for a failure to take such steps as [666]*666might have minimized his damages. According to the evidence the wrecking of appellant’s train caused the destruction of the fence dividing its right of way from appellee’s meadow. It was a fence appellant was charged with the duty of maintaining, and which, according to appellee’s testimony, it had promised appellee to restore within a week; upon this promise the latter had a right to rely. When he found it had not been done in the time agreed, his complaint thereof only brought fresh assurances that it would soon be done. Because of these assurances appellee had the right to expect, and was induced bj1- them to believe, that each day would see the work of restoring the division fence begun and soon completed, and it was finally done at the end of five weeks. The rebuilding of appellee’s own fence destroyed by appeliant with the division fence would not have lessened his damages, for the absence of the division fence would still have left his meadow exposed to the depredation of stock.
Whether the duty resting upon appellant to restore the division fence destroyed by its servants was imposed by section 1783, Ky. St., we need not decide ; nor is it necessary to pass on the validity of the contract made more than 20 years ago between appellee and appellant’s vendor, the Newport News & Mississippi Valley Railroad Company, whereby that company undertook the duty of maintaining the division fence in question, as it is apparent from the evidence that appellant, since it acquired the railroad and franchise of the Newport News & Mississippi Valley Railroad Company, twice rebuilt the fence at its own cost, and altogether has maintained it, and it is now estopped to claim that it is not liable in damages to appellee for injury resulting to his [667]*667land from its failure to restore tlie fence following its destruction by tlie act of its servants. Moreover, it does not deny that it promised appellee, through its agent, Murphy, to rebuild the fence, but claims that it did not agree to do so in a week, but as soon as its fence crew finished some other work on which they were engaged.
In making the promise to restore the fence appellant recognized appellee’s right as the adjoining landowner to insist upon its restoring and maintaining it as a division fence without cost to appellee; hence it asked appellee’s permission to burn it with the debris from the wrecked train, and also a part of appellee’s individual fence, promising in return for such consent to rebuild the division fence, and in addition furnish appellee some woven wire for rebuilding his own fence. There was really no issue between the parties on the question whether appellant promised appellee to rebuild the division fence, or as to its being its duty to do so, but the issue was as to when it was to be rebuilt. The evidence on this issue, and as to the nature and extent of the injury to appellee’s meadow, was conflicting. Appellee’s testimony conduced to prove that appellant’s servant Murphy promised that the fence should be rebuilt in a week. Appellant’s testimony was to the effect that no definite time was fixed, but that it was to be done as soon as the fence crew could complete some other necessary work, and that the rebuilding of the fence at the end of five weeks was as soon as it could be done. This evidence all went to and was considered by the jury, and it cannot be said that there was not some evidence to support the verdict, which is not unreasonable in amount.
[668]*668We have not overlooked appellant’s criticism of the single instruction given by the court. It is faulty in form, but not so defective as to make it radically wrong’ or prejudicial to the substantial rights of the appellant.
Wherefore the judgment is affirmed.