Flynt v. Chicago, Burlington & Quincy Railway Co.

1. Trespass: repairing injury : nominal damages. Where defend-' ant’s servants inadvertently remove some earth from plaintiff’s land, and upon complaint replaced so that no substantial injury resulted, plaintiff is only entitled to nominal damages, and it is error tp refuse so to instruct them, and, instead, instruct" them that the replacing of the dirt makes no difference. 2. -: MEASURE OE DAMAGES: INSTRUCTION. In such case, the measure of damages is the value of the soil and grass removed, and the jury should have been so instructed, and it is error to direct the jury to assess plaintiff’s damages at whatever sum they believe him entitled to from the evidence, as this leaves them in the dark on the measure of damages.

Appeal from the Linn Circuit Court. — How. G-. D. B [jiiG-Ess, Judge. (1) The court below erred in giving plaintiff’s instruction number 1, because said instruction, in authorizing the jury to assess plaintiff’s damages at whatever sum they believe from the evidence he' is entitled to, was misleading, and liable to cause the jury to draw on their own notions for reasons for mulcting a railroad corporation in heavy damages. Weaver v. Hendrick, 80 Mo. 502. (2) Plaintiff ’ s first instruction practically refers'a question of law to the jury. This is erroneous. Coleman v. Roberts, 1 Mo. 97; Fugate v. Carter, 6 Mo.' 267; Newman v. Lawless, 6 Mo. 279; Hickey v. Ryan, 15 Mo. 62. . (3) Plaintiff’s second instruction ought to have been refused, because it asserts in effect the monstrous doctrine, that nothing that defendant did in placing plaintiff in statu quo, with respect to the dirt that had been removed, could be considered by the jury in mitigation of damages. In this same connection respondent urges that the court erred in refusing the defendant’s third instruction, which asserts the doctrine opposed to plaintiff’s instruction number 2. 1 Sedg. Meas. Dam., p. 298, note a. (4) The damages assessed against defendant are excessive and, evidently, the result of prejudice or mistake. Nothing more than nominal damages could properly be given in this case. Metzner v. Graham, 66 Mo. 653; 1 Sedg. Meas. Dam. 90. This is not a case for exemplary damages, because no malice, violence, or oppression or wanton recklessness is shown. Kennedy v. Railroad, 36 Mo. 351. . (1) The defendant’s objection to the admission of the evidence respecting the overflow of the land is disposed of by the plaintiff declining to ask any instructions to the jury for damages, by reason of said overflow. (2) It is sufficient to say that instructions number 1 and 2, given for plaintiff, were proper and embraced the law of the case. (3) The court properly refused instructions numbers 1, 2 and 3, asked by defendant. There was no evidence, whatever, to support number 1 and 2, and, as to the third instruction, by referring to paragraphs 2 and 5, psiges 16 and 17, appellant’s brief, it is clear that defendant conceded plaintiff’s cause of action, and, as there were no justifying facts or circumstances shown by defendant for unlawfully entering upon the land and removing the soil and grass, or for returning and attempting to replace it, it necessarily followed that said instruction should have been refused. 1 Suth. Dam., pp. 226 and 227, sec. 3. (4) The compensation, twenty-five dollars, given by the jury, was certainly not unjust to defendant. The finding was for the right party, and the verdict ought not to be disturbed. Upon the whole case, the court committed no error in giving or refusing instructions. It is respectfully submitted that defendant has brought this case here without cause, and that its defense to the action is without merit, and the judgment should be affirmed with damages.