Southern Ry. Co. v. Gilmer

DOWDELL, J. This is an action to recover damages for the injury of two mules, by the defendant railroad company. The only question presented for our consideration, and that is insisted on in argument, relates to the measure of damages. In such a case, like the one before us, where the property injured is live stock, and a recovery, in a sense, from the injury inflicted, has been effected by treatment, the proper measure of recoverable damages is the difference in the reasonable market value of the tAvo mules on the day of, and before the injury, and what Avould haAre been their reasonable market value on the same day in their restored condition after treatment, together Avith the reasonable cost and expense incurred in effecting a cure, and reasonable compensation for any loss in service or use by reason of such injury from the time of the injury until the cure Avas effected; provided, the Avhole damages do not exceed the original value of 'the property. In Keyes v. Minneapolis & St. L. Ry. Co., 30 N. W. Rep. (Minn.) 888, which was a case similar to the one before us, the court ruled that the owner was entitled to recover in that case “For the diminished market value of the animals after cure, so far as a cure was effected, and, in addition thereto, such expenses as he incurred in reasonable attempts to effect a cure, and a reasonable sum as compensation for a loss of the use of the horses while under treatment, provided the whole damages do not exceed the original value of the property.” To the same effect are the following cases; Gillett v. Western R. R. Corporation, 8 Allen 560; Street v. Laumier, 34 Mo. 469; Oleson v. Brown, 41 Wis. 413. We understand that the “Diminished market value of the animals after cure,” as stated in ‘the above case, means the difference in [494] the market values on the day of the injury, with conditions as we have stated the rule. It will not do to fix values as of different days so widely separated as two months, for the reason that fluctuations in market values might, in such case, work injustice to one or the other of the parties. In most, if not all of the cases cited by counsel for appellee, the property in question was destroyed, and not merely injured as here. The measflre of damages in such cases, where the property is destroyed, as a general rule, is the reasonable market value of the property at the time, and just before it was destroyed. Some of the rulings of the trial court on the evidence are opposed to the views we have expressed, and to that extent there was error, and for which the judgment must be reversed and the cause remanded. Reversed and remanded. McClellan, C. J., Tyson and Denson, J.J., concurring.