Dickinson v. Pere Marquette Railroad ( 1907 )

Montgomery, J.

(after stating the facts). In this court it is contended that the circuit judge erred in refusing to strike out the testimony of witnesses stating their opinions as to the amount of damages resulting from the washing and caving away of the land. This' motion was made at the close of all the testimony and after the testimony questioned had been received without objection, and the witnesses had departed. The measure of damages had been stated in the presence of the jury to be the deterioration of the value of the farm by reason of the negligent acts of defendant. We cannot doubt that the court, the witnesses, and counsel all understood that this was precisely what the witness was attempting to state; and, while it may be conceded that the form of question propounded was objectionable if timely objection had been made, we do not think this slip for which defendant’s counsel was equally responsible with plaintiffs worked any injury to defendant. See Zabel v. Telephone Co., 127 Mich. 402.

It is next urged that a new trial should have been granted because the joining of demands for which plaintiffs were not entitled to recover with that upon which they did recover resulted in prejudicing the jury unduly and in a verdict which was unjust. We do not think this a legal ground for a new trial. The plaintiffs had a right to join several demands for different torts, and to attempt a recovery on each in good faith.

It is also insisted that the circuit judge should have granted a new trial on the ground that the damages allowed were excessive. We feel constrained to hold that this contention should prevail. It is true there is a basis in the testimony of the plaintiffs’ witnesses for a larger verdict than that given, but it is not understandable how such figures could be made. The circuit judge distinctly limited the plaintiffs to damages already accrued. There was no tangible testimony of any damage other than the loss of the land and inconvenience in farming such as lay within the 15-foot strip across the plaintiffs’ farm. If it be assumed that it was made necessary to remove the fence, the expense of doing so might be added. We think the statement of defendant’s witness that double the value of the land taken would be sufficient compensation was sufficiently liberal, and on this basis a verdict of $250 would have covered the extreme value.

The judgment will be reversed and a new trial ordered, unless the plaintiffs shall remit the sum of $200 within 30 days. On filing such remittitur, the judgment will stand affirmed, except that defendant will recover costs in this court as upon a reversal.

McAlvay, O. J., and Ostrander, Hooker, and Moore, JJ., concurred