Missouri Pacific Railway Co. v. Schoennen

Ellison, J. This is a proceeding instituted by the plaintiff to condemn property of the defendants as being necessary for its use as a public corporation. Plaintiff appeals from the damages assessed against it. The litigation, if we may rely upon the statement in the briefs, has been quite protracted. The evidence produced below is not preserved and our review of errors alleged is confined to the instructions of which complaint is made. We have examined these and find that there were none refused for either side, objections being only taken to those given for the defendants. If we -were to confine ourselves to those given for the defendants we might readily admit that .some of them are fairly subject to criticism, but when we consider them in connection with those given at plaintiff ’ s request, we are inclined to hold that as a whole they present the case tc the jury in an intelligible manner, and that they are not misleading in character. When such is the case the judgment should not be disturbed for that cause. Reilly v. Railroad, 94 Mo. 600, 611; Porter v. Harrison, [617] 52 Mo. 524. Complaint is specially urged against instruction number 4, in that it allows damage for any special or peculiar value by reason of the property’s front on the Osage river, or for the purpose of storing, receiving and forwarding freight. Without considering whether such instruction is right or wrong, we say that if wrong the error was condoned by-plaintiff’s third instruction in which the same vice appears. Railroad v. Vivian, 33 Mo. App. 583. After a full consideration of all the points made by appellant we are satisfied that no error was committed materially affecting the merits of the cause, and the judgment will therefore be affirmed. Gill, J., concurs; Smith, P. J., not sitting.'