Powell v. Alton & Southern Railroad, 203 Ill. App. 60 (1916)

Nov. 13, 1916 · Illinois Appellate Court

203 Ill. App. 60

Seth Powell, Appellee, v. Alton & Southern Railroad, Appellant.

(Wot to he reported in full.)

Abstract of the Decision.

1. Appeal and error, § 1411 ^* —when verdict based upon conflicting evidence will not be disturbed. Where the evidence upon a question of fact was sharply conflicting and the verdict of the jury was not against the manifest weight of the evidence, such verdict should not be disturbed, unless other errors in the record require it.

2. Railroads, § 443 ^* —when instruction on measure of damages in action for damages for construction and operation of road is erroneous. The true measure of damages in an action against a railroad company for damages because of the construction and operation of its road near the plaintiff’s property is the difference in the fair cash market value of the property before and after such construction and operation, and an instruction which directs the jury to fix such damages as they may find them from the evidence, is erroneous and warrants reversal, unless it be supplemented and cured by other instructions.

Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.

Affirmed.

Opinion filed November 13, 1916.

Statement of the Case.

Action on the case by Seth Powell, plaintiff, against the Alton & Southern Railroad, defendant, to recover damages for injury to plaintiff’s property due to the construction and operation of defendant’s railroad. From a judgment for $375 in favor of plaintiff, defendant appeals. , - ,

Kramer, Kramer & Campbell, for appellant.

Silas Cook, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Boggs

delivered the opinion of the court.

3. Instructions, § 159 ^* -—when considered as a series. The instructions given by the court are to be read and considered together, and if when so considered they state the law applicable to the case with substantial correctness, it is sufficient, notwithstanding some one instruction is in itself erroneous.

4. Instructions, § 88 ^* —when instruction as to determination of preponderance of evidence is not reversibly erroneous. An instruction as to determining the preponderance of the evidence should include the number of witnesses as one of the elements to be considered, but the omission of this element is not reversible error except where the element of the number of witnesses is shown to be important.

5. Appeal and error, § 1491 ^* —when exclusion of evidence is harmless error. It is not reversible error to refuse to admit in evidence exhibits consisting of certain records made by a witness with a machine invented by him where he is allowed to give the results of his tests to the jury.