Lathrop v. Quincy, Omaha & Kansas City Railroad

ELLISON, J. This is an action to recover damages for the loss of grass growing on plaintiffs’ land. The judgment was for them. Plaintiffs’ land adjoins the defendant’s railway and sparks from a passing engine were the origin of [19] the fire which they charge destroyed meadow and clover as well as some fence posts and old hay. Tayo suits were brought before a justice of the peace. On appeal to the circuit court these were consolidated and tried as one case. The defendant has been industrious in collecting authorities to sustain the several objections made to the action of the trial court during the course of the hearing. An examination of the objections does not incline us so much to deny the general propositions of law advanced in their support, as it does the application of those propositions to the condition of case presented by the record. There was something said between court and counsel as to the destruction of the grass roots in addition to the grass. But we do not see where any harm could result from this, in view of further remarks of the court .later on, and as it appears not to have been followed up in submitting the issues to the jury. Our conclusion therefore is that there is no ground on that head-for disturbing the judgment. Defendant has much to say concerning the true measure of damages in cases of this nature. But the difficulty with its position here is in the fact that the, record presented to us does not afford a foundation for application of the rules it brings to our attention. The several instructions requested by plaintiffs merely ask for the value of the grass, posts and hay destroyed, without undertaking to submit any particular or special rule for ascertaining such damage. The defendant fol-loAved the same course and merely required the jury to “only allow the plaintiffs for the reasonable value of each item or claim of damages in each count of each petition.” There is, therefore, no ground of complaint on defendant’s part. If any criticism can be justly made of plaintiffs’ instructions, the same could be applied to defendant’s. If plaintiffs’ are erroneous, defendant adopted them; the fault is common and no com [20] plaint can. be made. [Gates v. Railway, 44 Mo. App. 488, 495.] But in fact tlie instructions ought not. to be termed erroneous. They merely omit any reference to a rule whereby the damage or value may be ascertained. Those for plaintiffs were correct as far as they went, and if defendant wanted more it should have asked it. Instead of so doing-, it adopted plaintiffs’ idea of non-committal. So the case was'left by each party without instructions as to the rule or measure of damages. And a case may rightfully be left in that condition, since in a civil action it is not compulsory to give instructions. [Morgan v. Mulhall, 214 Mo. 451, 114 S. W. 4; Wilson v. Railway, 122 Mo. App. 667.] After a complete examination of the record, we conclude the judgment was for the right party, and it is affirmed. All concur.