Southwestern Mineral Railway Co. v. Harvey

54 P. 806, 8 Kan. App. 489, 1898 Kan. App. LEXIS 246

Opinion

The opinion of the court was delivered by

Schoonover, J.:

The plaintiff in error asks a reversal of a judgment awarding damages to the defendant in error, by the district court of Labette county, for right of way. The serious question involved is in the seventh question submitted to the jury and the answer thereto, which are as follows :

‘ ‘ Ques. 7. Do you allow anything for increased hazard to animals or stock caused by being frightened by defendant’s train of cars, and, if so, do you include that in your award? Ans. Yes.”

It has been repeatedly held by our supreme court that this item of damages is speculative and remote. The amount allowed by the jury for increased hazard to the animals or stock of defendant in error, caused by being frightened by the trains of plaintiff in error, cannot be ascertained, but whatever the amount.may be it is included in the award. The question is fully discussed in the following cases : A. & D. Rly. Co. v. Lyon, 24 Kan. 745; St. L. K. & S. Rly. Co. v. Hammers, 51 id. 127, 32 Pac. 922, and cases there cited.

The judgment of the district court is reversed and the case remanded for a new trial.