Lackland v. North Missouri Railroad

Bates, Judge, delivered the opinion of the court. This is an action brought to recover damages for obstructing a highway (a street in the city of St. Charles) in front of a lot of the plaintiffs. The evidence shows a state of facts almost identical with those which appeared in the case of Norman Lackland against the same defendant, reported in 31 Mo. Rep. 181; with the addition, in this case, that, since the suit was brought, such changes have been made in the street, and in the use of it by the defendant, as removed the greater part of the obstructions. Two cases have been before this court which had reference to obstructions of the same street, in front of lots near to that of the plaintiffs ; they are the cases of Norman Lackland against the North Missouri Railroad Company, 31 Mo. 181, and Porter v. the same defendant, 33 Mo. 128. In the present case it is unnecessary to review the previous cases, and we examine only to see if this case was tried in accordance with the principles announced in the decision of those cases. At the trial a number of instructions were given to the jury, three of which were on motion of the plaintiffs, and eight on motion of the defendant. The instructions given for the plaintiffs, if they stood alone and unqualified by those given for the defendant, would certainly have been erroneous. It becomes therefore necessary to examine them all very carefully, to see whether, taken all together, they properly stated to the jury the law applicable to the case. The true object of instructions is to enlighten the jury, and it is inconvenient and unsafe to give instructions which make it necessary to give other instructions to qualify and explain the first. The first instruction given for the plaintiffs declares that [274] if the property of the plaintiffs was injured in value, or their business there incommoded or obstructed to their damage, or the ways and approaches to their property cut off, destroyed or obstructed, by reason of the acts of the defendant; 1st, in constructing the main track of the railroad in such manner as to prevent the use of the street; or, 2d, in laying the side-track close to plaintiffs’ property, along the east side of the street; or, 3d, in laying the switch-track connecting the two tracks aforesaid; or, 4th, in the laying of the beams or iron rails in such a manner as to prevent the use of the street; or, 5th, in the erection of said cattle-way or switch frames, and other obstructions in said streets, such as ditches; or, 6th, by running cars and locomotives back and forth in said streets for the purpose of making up trains of cars ; or, 7th, by leaving cars and trains of cars standing in said streets, in front of plaintiffs’ property ; or, 8th, by rm-loading cars; or, 9th, by using said street for the purposes of a depot yard, in such manner as to prevent the public from using said street, or so as to cut off plaintiffs’ access to their property, then the jury must find for the plaintiffs. The followi2ig objections to this instructio2i may be considered as cured, so far as could be done by instructions given for the defendant, namely: that it authorized a recovery by the plaintiffs for damages, 1st, by the occupation of the street for the purposes of a l'ailroad, in its ordinary use as a means of travel and transportation; 2d, for the temporary obstruction of the street necessarily caused while the road was in process of construction ; and, 3d, for damages which plaintiffs sustained in common with the public, and which were not special to them. The instruction, however, recites nine different kinds of acts of the defendant, for either of which it directs a recovery by the plaintiffs of such damages as the evidence shows the plaintiffs have sustained. This amounts to a declaration by the court, that each of the enumerated acts was unauthorized by law. The defendant was authorized to construct a railroad in a street, and when constructed to irse it [275] for tlie ordinary purposes of a railroad as a means of travel and transportation; and this instruction assumes to declare as a fact that each of the enumerated acts was not performed in accordance with the authority of the defendant, but was beyond and outside of its authority to construct and use the road; or, in other words, that each of those acts was an obstruction of the highway of such unlicensed character as was forbidden by law. Every use of a highway is in one sense an obstruction ; if a wagon or other obstruction, or other ordinary vehicle, occupy a place in a highway, it for a time obstructs the space occupied by it, and excludes other uses of the same spot; and such obstruction is entirely legitimate, if the occupation of the highway be according to the usual manner, and a person damaged by such use of the highway would have no ground of action against the owner of the wagon; but the occupation of the highway by a wagon might be so prolonged, or otherwise improperly managed, as to subject the •owner of it to an action for damages caused thereby; but such liability would result, not from the use of the highway, but from the illegal manner of using it. In like manner the defendant in this case having the right to use the street, is responsible only for an illegal manner of using it; and the court, in the instruction given, has declared that each of the enumerated acts is an illegal use of the street, and the only thing left for tlio jury to determine was, whether the property of the plaintiffs was injured in value, or their business there incommoded or obstructed to their damage, or the ways and approaches to their property cut off, destroyed or obstructed. But even if this instruction could be construed as leaving the jury to determine the question of fact, whether any of the enumerated acts had been done by the defendant, yet the instruction is fatally wrong in determining that each ■of those acts was an obstruction of the street. For example, the instruction directs a verdict for the plaintiffs, if their property has been injured in value by the laying of the [276] side-track close to thoir property, along the east side of the street; thus usurping the province of the jury in determining that the side-track did obstruct the street, or else authorizing the plaintiffs to recover because of the side-track, although it was no obstruction. In another respect the instruction, although not fatally wrong, was calculated to embarrass the jury by its great comprehensiveness. It directs a verdict for the plaintiffs for damages sustained in any one of three ways, by any one of nine acts of tlie defendant; that is, it authorizes the plaintiffs to recover upon any one of twenty-seven different hypotheses. The second and third instructions are erroneous in assuming that the defendant had committed the acts described in the first instruction; and it was also improper, as in the second instruction, to single out one fact relied on by defendant, and state that that fact did of itself constitute no defence- judgment reversed and cause remanded. Judges Bay and Dryden concur.