delivered the opinion of the court.
Counsel for appellant present various grounds of objection to the procedure and the judgment. We are of opinion that there is no merit in any of them, except such as go to the instructions. >
It is objected that the court erred in modifying the second instruction presented by appellant. The instruction as tendered was accurate, properly informing the jury as to the measure of appellee’s damages, if any. The modification consisted in the addition to the instruction of these words:
“Any result of the trolley cars since the viaduct was built, or any result of obstruction by the railroad before the viaduct was built, is not to be considered.”
It was doubtless the intention of the learned trial judge to thereby exclude from the consideration of the jury any temporary advantage which the property enjoyed before the construction of the viaduct by reason of the necessary change of cars at that point by street car passengers, and the custom of such passengers while waiting for cars to patronize the saloons and other places of business conducted, upon the property in question. If the effect of the instruction upon the jury could be safely said to have been limited to this consideration alone, appellant could not complain, for there could then have resulted no prejudicial effect to it. But the difficulty is, that it can not be judicially determined that the jury so limited the application of the instruction. There was evidence showing that the value of the property before the construction of the viaduct was unfavorably affected and cheapened by the presence of the grade crossings of the railroad tracks. The instruction told the jury that they might take the value before the improvement, freed from any disadvantage which resulted to it by railroad obstructions. Thus the main defense of the appellant Avas practically eliminated from the case; for the appellant’s meritorious defense, so far as appears from this record, amounted only to a contention that the construction of the viaduct was in its total effect a benefit rather than a damage, because it removed' the obstruction of the grade crossing.
The instruction would have been equally open to objection by appellee, if limited in its effect to the excluding of the temporary advantage of patronage of the saloons and stores by passengers upon the street cars. The advantage to the property in this regard Avas perhaps merely a temporary advantage, but its temporary character had its effect in fixing the fair cash market value of the property before the construction of the viaduct. The jury were to take that fair cash market value as- they found it to be before the construction of the viaduct,, and were not to reduce it further by again subtracting an element of temporary advantage,, which must be presumed to have already had the effect only in determining value which its temporary character warranted.
The tenth instruction given for appellee should be qualified by the words “ or decrease,”' so that it would cover the contingency of a finding by the jury that there had been some decrease in value from causes other than the construction of the viaduct.
We find no error prejudicial to appellant in other rulings upon instructions. Some of the refused instructions were substantially included in instructions given, and others were properly refused. The thirteenth instruction refused is an accurate statement of the law, but we fail to see how its exclusion could have harmed appellant.
Because of the modification of the second instruction tendered by the appellant, the judgment is reversed and the cause remanded.