Railway Co. v. Jones

26 S.W. 595, 59 Ark. 105, 1894 Ark. LEXIS 36

• Court: Supreme Court of Arkansas
• Decided: May 5, 1894
• Status: Published

Opinion

Hughes, J.

(after stating the facts.) There was no reversible error in the refusal of the court to require the jury to answer questions which the appellant proposed. This was in the sound discretion of the court.

Instruction numbered fourteen, asked by appellant and refused, was substantially covered by instructions one and two for appellee, given by the court, and there was no reversible error in refusing number fourteen.

The court improperly permitted the appellee to state in testifying that he estimated his loss at $10 per acre. This was opinion evidence, without a statement of facts bn which it was based sufficiently full to admit the opinion of the witness, which, with proper foundation, might have been admissible. “A witness is never permitted to estimate the amount of damages which a party has sustained by the doing or not doing of a particular act. That is the province of the jury, and not of the witness. He may state the facts showing the extent of the injury, and any other pertinent matter ; but the measuring of damages is not a fact, but matter of opinion ‘or speculation.” L. R. M. R. & Tex. Ry. v. Haynes, 47 Ark. 497. It is stated in Railway Company v. Lyman, 57 Ark. 512, that “a farmer suing for the destruction of his crop may give his opinion as to the value of the crop at the time of its destruction, and state, as the basis of his valuation, the usual yield of the land in crop seasons similar to that in question.”

The evidence that other fires had occurred on the line of the railroad than the one which destroyed the plaintiff’s meadow was improperly admitted, as it was not shown that these fires were caused by the engines of the railroad, or that they occurred from the operation of its trains. If this had been shown, it might have been admissible as a circumstance tending to show that the condition of the right of way of the railroad was such that a fire might have occurred from sparks escaping from its engines, and igniting the dry grass and inflamable material on its right of way. But the fact that other fires had occurred, without proof that they were caused by the railroad, was inadmissible. And it was inadmissible to show that other engines had set fire to materials on or near the right of way, as a circumstance to show that the engine which caused the fire on this occasion, or its appliances, were defective or in bad condition. For such purpose the proof would have to be confined to fires caused by the engine that is said to have caused the fire that burned the appellant’s meadow. In Tilley v. St. Louis and San Francisco R. Co., 49 Ark. 542, it is said: “A railway company is bound to keep its track and contiguous land free from inflammable matter. It is not however negligence per se for it to permit the dry grass and vegetation to remain on its right of way. This is only a circumstance from which the jury may infer negligence.” It is also said in this opinion, p. 540, that “a railway company, having the legal right to propel its cars by steam, is not liable for fires communicated by its engines, unless it has been negligent in their construction or management.” It is also held in this case that where the fire that causes the injury is shown to have escaped from the locomotive of the railway, there is, under the statute (sec. 5537, Mansfield’s Digest), a presumption of negligence upon the part of the railway, which it must, to exonerate itself, overcome by proving that it was using proper and safe locomotives and engines, and that its-servants were conducting them in a proper and safe way.

2. as to proving- deingrotherfires-

3. presunipby

* Note.—-As to when the cost of restoration is the measure of damage to real property, see Hartshorn v. Chaddock, 17 L- R. A. 426. (Rep.)..

of4'damI|lUfor meadow!0”of

The instruction given at the instance of the appellee, which we number 3, was erroneous, as it failed to fix any measure of damages, but left the jury without any proper-direction how to measure the damages, and was calculated, to mislead them into the belief that the matter rested wholly with them to fix upon such a measure of damages-as they saw fit. Where a meadow is destroyed by fire, the measure of damages is the cost of re-seeding the meadow, and its rental value until it is restored.* Vermilya v. Chicago, etc. R. Co. 66 Iowa, 108; Pittsburgh, etc. R. Co. v. Hixon, 110 Ind. 225.

There was no evidence to sustain the first count of’ the complaint. There was no evidence to sustain a verdict for the amount found by the jury in this case, as-there was no proof of loss, save as to the cost of-re-seeding-the meadow. There was no proof of the rental value of the meadow, or of how long it would have required to-restore it, after the fire, to as good condition as it was-in before.

For the giving of the third instruction, and for want, of proof to sustain the verdict, the judgment is reversed,, and the cause is remanded for a new trial.