Chicago, Milwaukee & St. Paul R. R. v. Hall

Citations

• 90 Ill. 42

Syllabus

<p>1. Damages—as io matters nolle prossed. In a suit by a property owner to recover damages against three railroad companies for the laying of their track near bis dwelling, in the street, whereby smoke, dust and cinders were thrown upon his house and lot, and otherwise creating a nuisance, depreciating the value of his property, where the plaintiff, on the trial, entered a nolle prosequi as to all damages arising from the construction and operation of certain tracks shown to belong to one of the companies exclusively, a finding of damages for the depreciation caused by all the roads, as well as general depreciation of real estate after the construction of the several roads, can not be sustained, and a remittitur of $800 out of $2000 found by the jury will not cure the error, as it can not be known how much the jury allowed for damages occasioned by the tracks to which the nolle applied.</p> <p>2. Instruction—assuming what is proved, is erroneous. A clause in an instruction, which assumes to determine what the evidence proves, or the weight of the evidence as to any given fact, is contrary to one of the plainest rules of practice, and can not be sanctioned.</p> <p>3. Measure of damages—nuisance io property by railroad tracks, etc. In an action to recover damages caused to a house and lot by the construction and operation of railroad tracks in a street in close proximity to the plaintiff’s property, the true measure of damages is, the loss sustained by thé nuisance, the injury from jarring the building and the throwing of cinders and smoke upon the plaintiff’s premises, and the depreciation of the value of the property by these causes may be considered, but not general depreciation in value from other causes, such as mere inconvenience in approaching or leaving the property, or the noise and confusion, in-the vicinity. The injury must be physical. f</p> <p>4. Damage to property not taken for public use, to he recoverable, must be physical and real, and not speculativ