Taylor v. Kansas City Cable Railway Co.

Ellison, J.

The petition in this cause asks damages against defendant for an injury to his property, caused by defendant throwing “ up in the center of said Ninth street, and in front of plaintiff’s said property, an embankment five feet high,” thereby raising the grade-of the street, and whereby he was damaged, etc. The court gave two instructions for plaintiff over defendant’s-objection, in one of which it is declared that plaintiff is entitled to recover if the defendant caused the “street to be raised, or a cable railway to be built and constructed in front of said property so as to damage the-same.” In the other, the jury are directed to assess plaintiff’s damage in such sum as will “compensate-him for the damage he has sustained by reason of the change of the street and the construction of said cable railroad in front of his property. The petition only asks damages for making the embankment in the street, while the instructions make a clear distinction between raising or throwing up the street and constructing the railway, and directs the jury to find for either or both injuries. They should not have been given. Brown v. Railroad, 80 Mo. 457, and cases cited.

There is one contention by defendant that we find no evidence whatever to support: that is, that the embankment was merely the grade of the street as established by the City of Kansas. Not being in the record we, of course, give it no consideration.

The judgment is reversed and the cause is remanded.

All concur.