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its street improvements from a large extent necessary element of his responsibility in of territory and brought to one locality, to this regard. He is not required to anticiwhich without such improvements it would pate that the wrong will be committed, even not have come, and as to the right of the though it has been threatened by the wronglandowner to be protected by injunction from doer, or to forego the lawful use of Lis premfuture recurrence of injury from such con- ises. It is sufficient for the injured party tinuing cause, there can be no doubt, and in to exercise ordinary care and diligence in this appeal by the plaintiffs, in whose favor preserving his property after he has knowlsuch remedies were provided by the court, edge of the wrong. no question as to such right and obligation There are very many cases illustrating is made; the purpose of the appeal being and applying the rule relating to the duty of solely to seek a determination of the question the injured party to exercise in good faith as to the amount of damages, raised by their ordinary and reasonable care and diligence exception to the conclusions of law and by to reduce the damages. Among them are the their various motions herein mentioned. One following: Chase v. N. Y. Cent. R. Co., 24 who has been injured, either in his person Barb. (N. Y.) 273; O'Neill v. N. Y. 0. & U. or in his property, by the negligence or mis- Ry. Co., 45 Hun, 458; Gilbert v. Kennedy, conduct of another, is under obligation to do 22 Mich. 117; Hopkins v. Sanford, 41 Vich. whatever he may do reasonably to prevent 243, 2 N. W. 39; Wright v. Ill. & Miss. Tel. the increase of damages. His negligence Co., 20 Iowa, 195; Simpson v. Keokuk, 34 which does not operate to cause the injury, Iowa, 568; Allender v. C. R. I. & P. R. Co., but which merely adds to the damage re- 37 Iowa, 264; Davis v. Fish, 1 G. Greene sulting therefrom, is not a bar to the action, (Iowa) 406, 48 Am. Dec. 387; Douglass v. but it will have the effect of diminishing the Stephens, 18 Mo. 362; Town Co. v. Leonard, damages, or go in mitigation thereof. Only 46 Kan. 354, 26 Pac. 717, 26 Am. St. Rep. such portion of the damages as may be direct- 101; Cargill v. Thompson, 57 Minn. 534, 59 ly attributable to the plaintiff's failure to N. W. 638; Reynolds v. Chandler River Co., perform his duty in the premises should be 43 Me. 513; Sutherland v. Wyer, 67 Me. 64; deducted from the damages as a whole. Plummer v. Pen. Lumb. Ass'n, 67 Me. 363;

As a general rule, when contributory neg. Loker v. Damon, 17 Pick. (Mass.) 284; French ligence constitutes a defense, it is a complete V. Vining, 102 Mass. 132, 3 Am. Rep. 440; defense to the action and bars a recovery of Board v. Arnett, 116 Ind. 438, 19 N. E. 299; any amount; but when the negligence of

Summers v. Tarney, 123 Ind. 560, 24 N. E. the plaintiff contributed, not to cause the 678; Standard Oil Co. v. Bowker, 141 Ind. injury, but only to aggravate it, the injury 12, 40 N. E. 128; Wabash R. Co. V. Miller, produced by the plaintiff's negligence being 18 Ind. App. 549, 48 N. E. 663, and cases separable from that produced by the defend

there cited. See, also, Suth. Dam. 88 88 et ant's wrong, the defendant should be held

seq., 1055; Beach Contr. Neg. § 69; Thomp. liable only for such portion of the entire Neg. (2d Ed.) § 199 et seq.; Shearman & damage as was produced by his negligence. Redfield Neg. $$ 95, 741. In cases involving The rule is applicable both in contract and the question as to duty of the plaintiff to cut in tort. The duty of using ordinary and down the damages, whether in contract or reasonable care and diligence and making in tort, or whether for personal injury or for reasonable expenditures within his ability injury to property or estate, the existence rests upon a person injured by another's of fault in this respect on the part of the tort or breach of contract, and, so far as the plaintiff, with the extent to which it coninjury is unnecessarily enhanced by the neg- tributed to his loss as a whole, constitutes ligence or willfulness of the injured party, matter of defense, and the burden of proof is the damages which might have been avoided upon the defendant. City of Goshen v. Engby the performance of his duty in this re- land, 119 Ind. 368, 21 N. E. 977, 5 L. R. A. spect will fall to him to bear. Where the

253; Terre Haute, etc., R. Co. v. Sheeks, performance of the injured party of such 155 Ind. 74, 56 N. E. 434; Citizens' Street duty of cutting down the damages involves R. Co. v. Hobbs, 15 Ind. App. 610, 44 N. E. labor or expense, the party responsible for 377; City of Columbia v. Langohr, 20 Ind. the injury is chargeable with such reason- App. 395, 50 N. E. 831; Dunn v. Johnson, able cost. In some cases the amount of the 33 Ind. 54, 5 Am. Rep. 177. reasonable expense, not actually incurred, of In view of the statements of the court rerestoring the loss originally, will measure lating to the conduct of the appellants with the recovery of the injured party, though, reference to the damage to merchandise in by reason of delay, such expense has in- the year 1898 and succeeding years, it would creased, as, where a defendant had obstruct- be impossible for us to determine that the ed the plaintiff's drain, and the plaintiff court erred in failing to conclude that the could have indemnified himself for $23, but appellants were entitled to damages for such by delay in making repairs the damages losses. So, also, we cannot hold that thert amounted to $100, it was held that the plain- was error in overruling certain motions of tiff could recover only $25. Lloyd v. Lloyd,

.

the appellants for judgment in their favor 60 Vt. 288, 13 Atl. 638. Knowledge on the for damages in such sum as would include part of the injured party is an important and damages for such losses in those years.

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A motion of the appellants for a new trial Appeal from Circuit Court, Owen County; was overruled. The court in its finding stat- Joseph W. Williams, Judge. ed a strong case of continuing injury ex- Action by John R. Wilson and others tending through many years. . It was found against Frederick W. Denkewalter and that ordinary rains of one or two hours dura- others. From a judgment in favor of plaintion caused great accumulation of water, tiffs, and against defendant Denkewalter, deso that the streets, gutters, and sidewalks fendants appeal. Affirmed. were overflowed, and the water thus accumu

Homer Elliott, for appellant. I. H. Fowler, lating flowed with great force through the

for appellee. alley and on and over the premises of the appellants, spreading over the same and flow

ROBY, J. Appellees brought this action, ing into the buildings thereon, carrying dé

alleging that the appellants were indebted bris and sediment of the street thereon, "and

to them in the sum of $500 for legal services, causing considerable and severe injury and

bill of particulars of which was filed theredamage to the plaintiffs' premises and mer

with. chandise kept and used in the business," and

The only error insisted upon is based upon that this injury was a recurring one; yet no

the action of the trial court in sustaining damages were awarded for damage to the

appellees' motion to strike out the third parapremises, and the only damages awarded

graph of answer. The assignment of error were given for injury to certain cement in

is joint; both appellants joining therein. one of the years during which the wrong was

The judgment appealed from is against apcontinued. There appears to have been evi

pellant Frederick W. Denkewalter, however. dence of the amount of diminution in the

His coappellant is not a party thereto. The rental value of the premises caused by the

party against whom no judgment is rendered nuisance. The nuisance appears to have con

cannot have been injured by the action of the tinued during all the period in which the ap

court as above indicated. The assignment, pellants had carried on their business. The

not being good as to both, is good as to damages given in the sum of $100 were

neither. Bush v. McBride, 159 Ind. 663, 65 awarded for injury suffered in the first year

N. E. 1026. of their ownership of the property, so that

Judgment affirmed. it was impossible by comparison to show loss of profits occasioned by the wrong. The court should have formed from the evidence

(38 Ind. App. 695) before it some amount of damages referable

MILLER V. McKEAN et al. (No. 5,840.) to the great injury to the premises mentioned (Appellate Court of Indiana, Division No. 1. in the finding.

Oct. 26, 1906.) Another matter deserves attention. As a

APPEAL-DECISIONS REVIEWABLE - FINALITY

OP DETERMINATION. part of its judgment, rendered in March,

A judgment "that the plaintiff pay the 1905, the court ordered the city to remedy

costs herein,” following a general finding "for the defects in the street grading and gutter- the defendants," is not a final judgment from ing within eight months thereafter, and to

which an appeal will lie. so much of the judgment as extended the

[Ed. Note.-For cases in point, see vol. 2, time eight months for remedying such defects

Cent. Dig. Appeal and Error, $8 480, 481.) so as to avoid the overflow of the water,

Appeal from Circuit Court, Adams Counsuch “clemency” being granted over the ob

ty; R. K. Erwin, Judge. jection of the appellants, they excepted. We

Action by Calvin Miller against George E. cannot discover in the record any sufficient McKean and others.

. From a judgment in reason for granting such indulgence. The

favor of defendants, plaintiff appeals. Apcourt should have caused the abatement of peal dismissed. the nuisance more promptly.

A. P. Beatty and Merryman & Sutton, for Judgment reversed; cause remanded, with

appellant. Shaffer Peterson and Smith & instructions to grant a new trial, and to Moran, for appellees. grant the appellants leave, if asked, to amend their complaint.

BLACK, J. The appellant sued to recover

of the appellee George E. McKean contribu(39 Ind. App. 289)

tion because of the payment by the appellant DENKEWALTER et al. v. WILSON et al.

of certain alleged debts of these parties, and (No. 5,832.) 1

to set aside a conveyance of real estate made

by said McKean to defraud his creditors. (Appellate Court of Indiana, Division No. 2, Oct. 24, 1906.)

Upon the trial of issues formed there was a

general finding "for the defendants." The APPEAL-JOINT ASSIGNMENTS OF ERROR. Where a judgment was rendered against

only judgment shown by the record was enone of the defendants, and on appeal they

tered as follows: “It is therefore considerjointly assigned error on the sustaining of a ed and adjudged by the court that the plainmotion to strike out a paragraph of the answer,

tiff pay the costs herein paid, laid out, and the assignment was not good because not good

expended." This is not a final judgment as to both. [Ed. Note.--For cases in point, see vol. 3,

from which an appeal will lie, Cent. Dig. Appeal and Error, 88 2985–2989.] Appeal dismissed.

· Rehearing denied.

(38 Ind. App. 673) JESSUP et al. V. FAIRBANKS, MORSE &

CO. (No. 5,788.). (Appellate Court of Indiana, Division No. 2.

Oct. 25, 1906.) SALES CONDITIONAL SALE REMEDIES OF SELLER.

The vendor in a conditional sale is entitled to recover the balance of the purchase price, though the property sold has been destroyed without the fault of the vendee.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, SS 1362, 1436.]

Appeal from Circuit Court, Parke County; Gould G. Rheuby, Judge.

Action by Fairbanks, Morse & Co. against Lincoln R. Jessup and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Doan & Arbison and Hunt & Hancock, for appellants. Howard Maxwell and Harvey, Pickens, Cox & Kahn, for appellee.

COMSTOCK, P. J. Appellee, a corporation, brought this action against appellants to recover the purchase price of a certain gasoline engine, which had been sold to appellants upon condition that the title and right of possession should remain in the vendor until payment had been made in full as specified in the written contract. Before all the payments, provided for in the contract, had been made, and before all payments had become dre, the engine was wrecked by a fire which destroyed the building in which it was located. The issues were formed by the complaint and an affirmative answer by the appellants, in which they set up the destruction of the engine by fire without fault on their part as causing a failure of consideration for the contract in suit. A copy of the contract was filed with the complaint and with the answer. Appellee filed a demurrer for want of facts to this answer, which demurrer was sustained, and, defendants refusing to plead further, judgment was rendered against them for the sum of $199.87. From this judgment, appellants appeal.

The sustaining of said demurrer is charged as error for which a reversal is asked. We deem it necessary to set out only the following portions of Exhibit A, a copy of the contract filed with the complaint and answer. "Fairbanks, Morse & Company, Manufacturers of Gas and Gasoline Engines. Indianapolis, Ind., Oct. 3, 1903. Messrs. Jessup & Wheeler, Oakdale, Indiana-Fairbanks, Morse & Company hereby propose to furnish and deliver f. o. b. Beloit, Wis., one 25 H. P. Fairbanks-Morse gasoline engine, 'according to the following specifications: [Then follows the specifications, the guaranty, a list of supplies to be furnished with the engine.] The foundation plan will be furnished by us, foundation to be prepared and furnished by you. A competent man to superintend the erection of the engine will be furnished by us. You will supply all necessary labor and do all teaming. We propose to furnish the above

engine and material for the sum of $800.00, payable at the office of Fairbanks, Morse & Company, Indianapolis, Indiana, of which amount $200.00 is to be paid upon shipment, balance as follows: "$200.00 when erected and $400.00 six months after shipment at 7 per cent. per annum after due, also all expenses incurred in the collection thereof secured by contract. It is agreed that the title and right of possession of said engine shall remain in Fairbanks, Morse & Company until payment has been made in full, as above provided, and in the event notes are taken representing the deferred payments, the title shall not pass until said notes are fully paid and satisfied. Upon default of any payment when due, said Fairbanks, Morse & Company or their agent, may enter the premises without process of law, take immediate possession of, and remove, said property and any payments theretofore received, they shall be entitled to retain to cover expenses of taking possession of the above described property and to cover usage, and wear and tear upon the same. This proposal is binding when signed by the purchaser and approved by the Manager of Fairbanks, Morse & Company at Indianapolis, it being expressly understood and agreed that this is the only contract existing between the parties here mentioned and that there are no verbal agreements to the contrary. [Signed] Fairbanks, Morse & Company.” Proposal accepted by Jessup & Wheeler.

The foregoing is a sale on condition. It is not a contract to make a future sale. It required nothing to be done by the vendor to pass title. It gives the vendor the right to retake the property which is a disaffirmance of the sale, or second, he may treat the sale as absolute, and bring an action for the price. Turk v. Carnaban, 25 Ind. App. 125, 57 N. E. 729, 81 Am. St. Rep. 85; Green v. SinkerDavis Co., 135 Ind. 438, 35 N. E. 262; Smith v. Barber, 153 Ind. 322, 53 N. E. 1014. The contract being a present contract of sale, its stipulation that the title should remain in the vendor until the full payment of the purchase price, did not relieve the vendees from the contract to pay, because the property was injured or destroyed. American Soda Fountain Co. v. Vaughn (N. J. Sup.) 55 Atl. 54; Osborne v. South Shore Lumber Co., 91 Wis. 526, 65 N. W. 184; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537; Burnley v. Tufts, 66 Miss. 48, 5 South. 627, 14 Am. St. Rep. 540; Tufts v. Griffin, 107 N. C. 47, 12 N. E. 68, 10 L. R. A. 526, 22 Am. St. Rep. 863; Tufts v. Wynne, 45 Mo. App. 42; Planters Bank v. Vandyck, 4 Heisk. (Tenn.) 616; Humeston v. Cherry, 23 Hun, 141; Lavalley v. Ravenna (Vt.) 62 Atl. 47, 2 L. R. A. (N. S.) 97. In numerous decisions outside of Indiana, in cases of conditional sales, in which the property was destroyed before the payments were made in full, it has been held that the vendor may sue upon the promise of the vendee to make par. St. 1901, § 2641, providing that a widow, remarrying, cannot convey the property inherited where there are children by a former marriage.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Descent and Distribution, $ 310.] 2. JUDGMENT_CONFORMITY TO FINDINGS.

Burns' Ann. St. 1901, $ 585, provides that, when a judgment is to be executed without relief from appraisement laws, it shall be so ordered therein. A note sued on stipulated that it should be collectible without relief from appraisement laws. Held, that a finding in favor of plaintiff must contain the fact that the amount due was without relief before a judgment containing such a stipulation could be rendered.

Appeal from Circuit Court, Jay County; John W. Macy, Special Judge.

Action by Jennie C. Polley against Josephine A. Pogue and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed.

Smith & Moran, for appellant.

ment. In the foregoing list we have given some of them. American Soda Fountain Co. v. Vaughn (N. J. Sup.) 55 Atl. 54, decided in the year 1903, was a case of destruction of property in the possession of the vendee under such contract, and the court said: “The question to be determined is, what was the consideration of the note. If the passing of the title to the apparatus was the consideration the defense must prevail. If the delivery of the apparatus with the right to acquire title was the consideration, the plaintiff shall prevail. We think the consideration for the note was the delivery of the apparatus with the right to acquire title. The title was retained by the plaintiff merely as security for the unpaid purchase money. Nothing remained to be done by plaintiff to perfect the title of the defendant. That title would have become perfect immediately upon payment [citing cases]. * * * The exact question presented in the present case has been considered in other states and, although there is conflict in the authorities, the weight of authority is in favor of the plaintiff [cit. ing Burnley V. Tufts, supra; Osborne v. South Shore Lumber Co., supra).” In Lavalley V. Ravenna, supra, decided November 2, 1905, upon the sale of a horse, a written lien was executed reciting that the seller was to retain title until the balance of the purchase price was paid. The horse died before the balance was due. The court held that the seller was entitled to recover the balance. In our own state the cases hold that under such contracts as the one before us, the vendor has the right to elect whether to retake the property or sue for the purchase price on the promise to pay. Smith v. Barber, supra; Kilmer, etc., v. Moneyweight Scale Co. (Ind. App.) 76 N. E. 271; Gaar, Scott & Co. v. Fleshman (Ind. App.) 77 N. E. 744; Smith v. Barber, supra, distinctly holds that there is nothing to be done by the vendor, and nothing in the way of acceptance is necessary on the part of the vendee. Cases cited by appellant are distinguishable from those cited in this opinion, except, perhaps, Cobb v. Tufts, 2 Willson Civ. Cas. Ct. App. Tex. 141. We regard the question as settled in this state. "In such a contract of sale the possession was to be in the buyer, the title to remain in the seller, until full payment, then a sufficient consideration for the absolute promise to pay the agreed price.”

Judgment affirmed.

ROBINSON, C. J. Suit by appellant upon a promissory note and to foreclose a mortgage. John R. Bolen died intestate the owner in fee of certain lands leaving as his only heirs at law appellee Josephine Pogue, his widow, and the other appellees (except John Pogue), his children. During her widowhood, Josephine borrowed $300 of appellant and executed her note and mortgage to secure the payment. Afterward, and before her mar. riage with Pogue, the land having been set off to Josephine as her interest in the lands of Bolen, Josephine sold a part of the land! to Bickel, who assumed and agreed to pay $200 of such mortgage, which he paid, with interest. Josephine intermarried with John Pogue, and is now his wife. Afterward she borrowed of appellant $175, and agreed to pay commission and expenses of $10 for the same, and executed the note in suit in consideration of such loan and commission, and to secure the same she and her husband, John Pogue, executed the mortgage mentioned in the complaint. This mortgage was not a renewal of any part of the first mortgage, but was a loan made to Josephine Pogue. The $175 loan has never been paid, and is due, in the sum of $405.70. Upon the above finding of facts the court stated a conclusion of law that appellant “is entitled to recover of the defendant Josephine A. Pogue the sum of $405.70, together with her costs of suit so far as it relates to the suit on the note”; that the other defendants should recover costs; and that appellee should recover all costs made by her on her defense against the mortgages sued on.

We cannot disturb the court's finding, upon the evidence, that the mortgage given to secure the note in suit was not a renewal of any part of the first mortgage given by Josephine Pogue while she was the widow of John Bolen. The second mortgage was void. Burns' Ann. St. 1901, § 2641. There is evidence authorizing the finding that this note was a loan made to Josephine Pogue. The

(38 Ind. A. 678)

POLLEY v. POGUE et al. (No. 5,883.) (Appellate Court of Indiana, Division No. 1.

Oct. 25, 1906.) 1. DESCENT AND DISTRIBUTION-LAND INHER

ITED FROM HUSBAND-ALIENATION BY WIDOW ON REMARRIAGE.

A mortgage executed by a woman, having children by a former deceased husband, and her second husband, conveying land inherited from the former husband, is void under Burns' Ann.

judgment follows the conclusions of law, and the conclusions of law upon the facts found are right. But, under the motion for a new trial, it is argued that the finding should contain the fact that the amount due appellant was without relief. The note stipulated that the note should be collectible without relief from valuation or apppraisement laws. The statute provides that, when a judgment is to be executed without relief from appraisement laws, it shall be so ordered in the judg. ment. Section 585, Burns' Ann. St. 1901. The stipulation in the contract, unimpeached in any way, entitled appellant to a judgment without relief; but the judgment rendered does not so stipulate, and could not so stipulate, based upon the conclusions from the facts as found. Duchwall v. Kisner, 136 Ind. 99, 35 N. E. 697. “Where pertinent and material facts are proven," said the court in Gray v. Taylor, 2 Ind. App. 155, 28 N. E. 220, "but the court does not find upon them, and thereby impliedly finds that they are not proven, the finding in such respect is contrary to law, as well as contrary to the evidence, and good cause arises therefrom for a new trial.” See, also, Spraker V. Armstrong, 79 Ind. 577; Robinson v. Snyder, 74 Ind. 110. The motion for a new trial should have been sustained.

Judgment reversed.

ages should be considered and assessed for the entire farm.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, 88 367-370.] 4. TRIAL - INSTRUCTIONS MISLEADING INSTRUCTIONS.

In a proceeding to condemu land for a railroad right of way, an instruction that if the jury believed that certain additional tracks and cars would be an additional damage to defendants, then the probability of the laying of such tracks and running of the cars was an element of damage for which they were entitled to award compensation, was not misleading for failure to require that the jury should believo such facts "from the evidence."

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 535.] 5. EMINENT DOMAIN-FUTURE DAMAGES.

In a proceeding to condemn land for & railroad right of way, all damages present and future arising from the proper construction and operation of the railroad must be recovered and such damages not recovered in that proceeding cannot be recovered in a subsequent action.

[Ed. Note.-For cases in point, see yol. 18, Cent. Dig. Eminent Domain, § 627.] 6. SAME EXTENT OF RIGHT TO USE OF

PROPERTY - RAILROADS - RIGHT OF WAY USE.

Where an interurban railroad company condemned land for the right of way, it acquired the right as against adjoining landowners to construct additional tracks on such right of way, and to run any number of cars thereon in the proper management of its business.

(Ed. Note.--For cases in point, see vol. 18, Cent. Dig. Eminent Domain, 8 811.] 7. SANE-INSTRUCTIONS.

Where, in a proceeding to condemn land for a right of way, the jury were directed to consider the difference caused by the appropriation between the cash market value of the remaining land immediately before the appropriation and its cash market value immediately thereafter; to consider the farm as it then was, and that the damages should be assessed for the farm as a whole, etc., another instruction that defendants had no right to lay water pipes or to construct private drains across the right of way without plaintiff's consent, which was an element of damage for consideration, was not objectionable for failure to confine the jury to the consideration of such pipes and drains as shown by the evidence to be reasonably and properly necessary in the use of the land for farming. 8. TRIAL - INSTRUCTIONS-COMPROMISE VERDICT.

Where in a proceeding to condemn land, the only issue was the amount of damages, it was not error to refuse an instruction that while each juror should be open to influence by argument of his fellow jurors, he should not, while holding an intelligent belief, agree to a compromise verdict which did violence to his belief, the court having charged at plaintiff's request that the burden of proof being on the defendants, the jury should not agree or find damages for defendants until they could find that a preponderance of all the evidence sustained the sum found to be a fair measure of damages.

Appeal from Circuit Court, Cass County; Jno. S. Lairy, Judge.

Condemnation proceedings by the Union Traction Company against Catherine Pfeil and others. From an award in favor of de fendants, plaintiff appeals. Affirmed.

(39 Ind. App. 51) UNION TRACTION CO. V. PFEIL et al.

(No. 5,836.) (Appellate Court of Indiana. Division No. 1.

Nov. 2, 1906.) 1. EMINENT DOMAIN RAILROAD RIGHT OF WAY-DAMAGES-BENEFITS.

In a proceeding to condemn land for an interurban electric railway, no deduction should be made for benefits accruing to the landowner from the construction and operation of the road.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, 88 378-385.] 2. TRIAL-INSTRUCTIONS.

In a proceeding to condemn land for a railroad right of way, the court charged at defendant's request that if the jury found inconvenience and danger to the owner of the adjoining land and his family in crossing the track and right of way to exist, they might consider the same in estimating damages. There was evidence on all the points suggested in the instruction, and the jury was charged, at plaintiff's instance, that they should find no damages for defendant until they could agree that a preponderance of all the evidence in the case justified them in believing that a particular sum would be a fair measure of compensation. Held, that defendant's instruction was not objectionable for failure to expressly confine the jury's consideration of matters "shown by the evidence" to exist, and as authorizing the allowance of speculative and fanciful damages.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $ 535.] 2. EMINENT DOMAIN-DAMAGES.

Where a railroad right of way was sought to be condemned diagonally through a farm consisting of 65 acres of land in one body, dam

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