Kopp v. Northern Pacific Railroad

This action is brought to recover damages for injuries alleged to have been caused by an excavation of great depth made by the defendant upon land adjacent to the lot of the plaintiff, whereby the natural support was taken away, resulting in landslides, which carried away quantities of the earth and soil of his lot into the excavation. Questions of fact are raised in respect to the cause of the injury, whether it was occasioned by the defendant or by others, or by independent natural causes; also in respect to the extent and measure of damages, and the competency of certain evidence in relation thereto.

1. As to the cause of the injury, this question was properly and fairly submitted to the jury upon evidence tending to show that it was the result of the excavation made by the defendant upon the adjoining lot, as alleged. The written contract with one Graves, offered in evidence by the defendant, was properly rejected. It did *313not tend to prove that the company was not responsible for the work. By its terms the excavation therein provided for was to be done for the defendant, and it was to furnish the track, cars, engine, switches, and steam-shovel to handle the dirt, which was to be removed to fill in its own grounds, and also the necessary trainmen to manage the cars and engine. It seems to have been a contract for such work generally, and no particular reference was made therein to this excavation, and the material was to be excavated and deposited on the company’s grounds in accordance with the directions of the engineer in charge of the work.

2. The lot was 200 feet long by 50 feet in width, and had a frontage on two streets. A large part of it fell away, and the value of the frontage on one street is lost, and a retaining-wall would be necessary in order to restore and secure it; and the evidence shows that •the cost of proper retaining-walls would be much more than the value •of the entire lot. Evidence of the cost of a retaining-wall was proper to show whether or not the damage could have been repaired, and "the lot preserved, at any reasonable cost. It therefore became necessary and proper to introduce the evidence of witnesses having knowledge of the value of the lot in the situation it was in before it was affecte'd by the excavation, and in the condition it was left in after the damage had been done, in order to show the diminution in its value caused by the alleged wrongful acts of the defendant. The •evidence of the market value of the lot was not strictly, as it should have been, confined to the proper dates; but we are of the opinion that there was no prejudice from this cause, for the reason that it is •sufficiently obvious from the testimony that the prices and values had remained substantially unchanged. We do not think, therefore, that a new trial should be granted on this ground.

3. The damages allowed by the jury were in excess of what was warranted by the estimate of the relative values, as made by the only •expert witness who testified directly on that subject. But the jury were not confined to the consideration of his evidence alone, and, as we may presume, formed their judgment in part from the extent of the injury to the lot as shown by the evidence, and the condition the •lot was left in as compared with the value of the entire lot considered *314as intact. Whether they were warranted in awarding damages in excess of the estimate of the witness we need not consider. It was the judgment of the trial court that the verdict was larger than it ought to have been, and that a new trial should be granted unless the plaintiff would consent to a reduction in a sum fixed by the court, which was agreed to by the plaintiff. And with that result as so adjudged the trial court is satisfied. We see nothing, however, to warrant the conclusion that the jury were influenced by improper motives in fixing the amount of the verdict as found by them.

Order affirmed.