Ft. W. R. G. Ry. Co. v. Downie , 82 Tex. 383 ( 1891 )

Appellees owned two improved lots on which they resided, and appellant constructed its railway, switches, and coal bins in front of the lots, and has continued thereon to operate them. There is some conflict in the evidence as to whether the railway occupied the street in front of the lots, and the weight of the testimony perhaps tends to show that but a small part of the street in front of the lots was so occupied, but, it is an undisputed fact that appellant's tracks run just in front of the lots; and the evidence shows that they are rendered less valuable by the existence and operation of the railway so close to them. To recover damages for the injury thus resulting, this action was brought by appellees, who recovered a judgment for $1000.

The manner in which the property was affected was fully stated in the pleadings, and there was ample evidence to sustain the claim, both as to the existence and character of the injury, as well as to authorize a verdict for the sum awarded as damages. The character of the injury was the same in all material respects as that Shown to exist in the case of Railway v. Hall, 78 Tex. 169, and it becomes unimportant, in so far as the cause of action is concerned, whether the railway, switches, and other structures were in the street or not.

After instructing the jury that the ordinances of the city of Fort Worth gave to the railway company the right to construct and operate its railway over, across, and upon the streets named in plaintiffs' petition, and that plaintiffs could not recover damages for such injury as plaintiffs suffered in common with the public at large, the court gave the following charge:

"If, however, the jury believe from the evidence that plaintiffs' property is rendered less valuable by reason of the construction and operation of defendant's road and switches over, across, or upon said streets or near plaintiffs' said property, or by the maintenance near plaintiffs' property of defendant's coal bin or water tank, you should find for the plaintiffs and assess them such an amount as you may believe from the evidence will compensate them for such depreciation in value, if any, of said property before and after the construction of defendant' s road, caused by the same."

This charge it is urged was erroneous, "because it instructs the jury to find for the plaintiffs' if their property was rendered less valuable by the construction of defendant's road, coal bin, water tank, etc., without instructing the jury that such injury, if any, must be special to these plaintiffs and not suffered in common with the community, and because it does not limit; the damage to the difference in the market value of the property immediately before and after the construction of said railway, which charge is calculated to and doubtless did mislead the jury in their findings."

As before said, the court had instructed the jury that plaintiffs could not recover for an injury that resulted to the public or people generally on account of the construction and operation of defendant's road, switches, and other structures; and the jury could not have understood otherwise than that plaintiffs could recover only for special injury to their property. The court might with propriety have instructed the jury that in determining the amount of damages plaintiffs were entitled to they might consider the value of the property before and immediately after the railway and other structures were erected, and that the sum of depreciation so resulting might be given, but it seems to us that any intelligent jury would so have construed the charge given; but if not, the charge not being erroneous, defendant should have asked a charge such as it is contended should have been given. From the verdict, looking to the evidence, there is no reason to believe that the jury were misled by the charge.

It is claimed that "if a railway in its construction does not take the property of an individual, nor interfere with his easement in a public highway, nor disturb his ingress and egress, so that he sustains an injury peculiar to himself and not in common with the community, and operates its road with care and skill, incidental injury may result, but it will not be actionable."

This question was considered in the before cited, and for the reasons therein given, plaintiffs were entitled to recover damages if the averments of the petition were true, although there may not have been a taking of any of plaintiffs' property, nor a hindrance of their ingress or egress through the street in front of the lots. The charge of the court limited plaintiffs' right to recover to a recovery for such injury as resulted from the acts of the defendant, and there is nothing in the record tending to show that damages were awarded for injury caused in any other manner.

The fourth assignment of error is as follows: "The court erred in overruling defendant's objection to the admission of testimony, as noted in defendant's bills of exception numbers 1, 2, 3, 4, 5, and 6."

This assignment, under the statute, rules, and repeated decisions, can not be considered, for it points out no specific matter relied on as error, and we have not been even favored by counsel for appellant in his brief with a statement of any question or matter of fact to which the assignment was intended to relate.

The evidence of many witnesses authorized a verdict as large as that rendered; their credibility was a matter for the determination of the jury, and it can not be held that the verdict is excessive.

Finding no error in the proceedings that led to the judgment, it will be affirmed.

Affirmed.

Delivered November 27, 1891.