Weyer vs. The Chicago, Wisconsin & Northern R. Co. How much has the market value of the property been diminished by reason of the road crossing the farm? This was the rule laid down in the Snyder Case [Snyder v. W. U. R. Co. 25 Wis. 60], and it has been substantially adhered to in subsequent cases. At the same time it has been said that danger from fire by passing trains, or the liability of horses to get frightened from the same cause, or noise or inconvenience arising from the proximity of the premises to the railway track, are not such injuries as will authorize separate and distinct damages, being too remote. Hutchinson v. C. & N. W. R. Co. 37 Wis. 582; S. C. 41 Wis. 555. These things are never to be taken into account as a basis or ground for awarding damages, because they rest upon sources of injury too remote and conjectural. When the entire charge is considered, we do not think there is anything in it which could have misled the jury as to the proper measure of damages. They must have understood that they were to determine from all the testimony what was the fair value of the land taken, and what damage was done to the residue of the farm. They were told that they were to apply their common sense and experience to the testimony, and test the value of the opinions of the witnesses by the facts upon which such opinions were based. In their verdict, the court in substance told them that they could not give less than $375 nor more than $1,750, if these were the highest and lowest estimates of the witnesses. As a matter of fact, one witness placed the value of the land taken and the damage to the residue at $350. But it is perfectly obvious that the defendant could not have been prejudiced by the charge on this point. The jury found a verdict of $1,012.50 for the land taken and for damage to the balance of the farm. The court was asked to instruct the jury that they had no right to take into consideration the income that might Miller, Adm'x, etc. vs. The Chicago, Milwaukee & St. Paul R. Co. have been derived from the strip of land taken if it had not been taken. The court properly refused to give the instruction. In estimating the value of farming land, its productiveness, or the income which may derived from it, is always considered. Indeed, there is no better nor safer criterion than this to get at its real value. It is said some of the plaintiff's witnesses, in their estimate of the value of the land taken, and others in estimating the damages, include the probable future income of the land either as an element of damage, or in addition to value and damages. All this testimony was admitted without objection; and, whether proper or improper, it is too late now to say it should have been excluded. On the whole case, we think that the judgment is correct and must be affirmed. By the Court.- Judgment affirmed. MILLER, Administratrix, etc., Appellant, vs. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent. January 14-February 1, 1887. Railroads: Negligence: Presumption: Nonsuit. The evidence in this case showing that the plaintiff, while standing on a side track of the defendant's railway in front of a car loaded with lumber belonging to him, which had been left there to be unloaded, was run over and killed by such car, which was struck and set in motion by other cars which had been standing on the same track, but not showing what force set the other cars in motion, what the grade of the side track was, the customary manner in which such track had theretofore been used, or that any employee of the defendant was about such side track when the accident happened or before — is held not to raise a sufficient presumption of negligence on the part of the defendant to require the submission of that question to the jury. --- Miller, Adm'x, etc. vs. The Chicago, Milwaukee & St. Paul R. Co. APPEAL from the County Court of Dodge County. On May 7, 1884, the plaintiff's intestate was run over by a car on the railway of the defendant company, at Horicon, and killed. This action was brought by his widow, who had been theretofore duly appointed administratrix of his estate, to recover damages therefor. The complaint alleges that the death of the intestate was caused by the negligence of the defendant company. The answer denies the negligence charged, and alleges that the deceased came to his death through his own negligence. On the trial, after the plaintiff had introduced her proofs and rested her case, the court ordered a nonsuit, and judgment for the defendant was accordingly entered, dismissing the complaint with costs. The plaintiff appeals from such judgment. A sufficient statement of the testimony will be found in the opinion. For the appellant there were briefs by Jenkins, Winkler, Fish & Smith, and oral argument by Mr. Winkler. They contended, inter alia, that the deceased had a right to be about the car upon any reasonable errand connected with his property upon the car. He had a right to expect that if it became necessary to move the car it would not be done without some signal or warning to persons who might reasonably be expected to be about it, and there can be no question that the defendant ought to have anticipated that the deceased was likely to be about the car for some purpose connected with his property upon it. The car stood on the edge of the highway, and for that reason alone the deceased had a right to assume that it would not be pushed into or across the highway without warning. See McKone v. Mich. Cent. R. Co. 51 Mich. 601; Watson v. W., St. L. & P. R. Co. 66 Iowa, 164; Ill. Cent. R. Co. v. Shultz, 64 Ill. 172; Holmes v. N. E. R. Co. L. R. 4 Exch. 254; Doss v. M., K.& T. R. Co. 59 Mo. 27. Miller, Adm'x, etc. vs. The Chicago, Milwaukee & St. Paul R. Co. For the respondent there was a brief signed by John W. Cary, attorney, and Burton Hanson and F. W. Downer, Jr., of counsel, and the cause was argued orally by Mr. Hanson. They argued, among other things, that there was a complete failure of proof as to the material allegations of the complaint. The presumption is that the defendant was free from negligence, and though a general allegation of negligence may be sufficient in a complaint, the plaintiff must show upon the trial some definite act or omission on the part of the defendant upon which he bases his right to recover. Daniel v. Metropolitan Railway, L. R. 3 C. P. 591; Higgs v. Maynard, 14 L. T. (N. S.), 332; Toomey v. L., B. & S. C. R. Co. 3 C. B. (N. S.), 146; Wood v. C., M. & St. P. R. Co. 51 Wis. 196; Cahill v. Layton, 57 id. 600; Lockwood v. C. & N. W. R. Co. 55 id. 50; Stevenson v. C. & A. R. Co. 5 McCrary, 634; Kendall v. Boston, 118 Mass. 234; Bremmer v. G. B., St. P. & N. R. Co. 61 Wis. 114; Denby. v. Willer, 59 id. 240; Sorenson v. Menasha P. & P. Co. 56 id. 338; Steffen v. C. & N. W. R. Co. 46 id. 259; Abbott v. Freeman, 35 L. T. (N. S.), 783; State v. B. & O. R. Co. 58 Md. 221; P., W. & B. R. Co. v. Stebbing, 62 id. 504; Phil. & R. R. Co. v. Schertle, 97 Pa. St. 450, 455. LYON, J. One of the railroads of the defendant company from Milwaukee to Portage city runs nearly west through the village of Horicon, and is intersected at that place by what is known as the Berlin Branch, another railroad of the defendant, which enters Horicon from the north west. South of the main track of the Portage Branch in such village are two side tracks, which connect with the main track at both ends. These side tracks are parallel to each other, and appear by a map in evidence to be each about 1,200 feet in length. About 300 feet west of the east end of these side tracks a traveled road crosses all of the railroad tracks from northeast to southwest. Immediately Miller, Adm'x, etc. vs. The Chicago, Milwaukee & St. Paul R. Co. west of this road, and south of the south side track, the plaintiff's intestate, Charles J. Miller, had a lumber yard, and occupied therewith about 250 feet of ground along the side track. He had carried on business there for several years. It does not appear how the remaining land along the south side track was occupied, except there was a coalshed south of it, directly east of such traveled road, but by whom it was used does not appear. Neither does it appear how, or for what purposes, or by whom, such south track was ordinarily used, except it was used for the purposes of the lumber business of the deceased. May 7, 1884, a car loaded with lumber belonging to the deceased was detached from a freight train and left on the south side track at a point some twenty or thirty feet west of the road crossing before mentioned, to be unloaded. The deceased directed where it should be left. The lumber was piled on this car four or five feet high. We infer that it was an open or platform car and was left there during the forenoon or early in the afternoon, although there is no direct testimony on these subjects. Afterwards, on the same day, a man named Winnefeld met the deceased at the coal-house above mentioned, and they had a conversation about the car-load of lumber. Winnefeld thought it was all fence lumber, and doubted whether there would be much demand for it. The deceased said that it contained other kinds of lumber, and they walked over to the car (which was four or five rods from them) and examined the lumber. They went round the car and stopped at the east end of it between the rails of the track, close to the car and facing it, where they continued their conversation about the fence lumber. While thus engaged, the lumber car was suddenly struck from the west with sufficient force to move it east on the track to the coal-shed, and it threw Miller over backwards, ran over him, and so injured him that he died during the same afternoon. It appears that |