
    C. H. Ranck, Appellant, v. Cedar Rapids Gas Company.
    .New Trial: Not granted because damages allowed are less than is' shown by certain uncontradicted testimony. Where, in an action for damages resulting from the escape of gas which it is claimed killed plaintiff’s grass and trees, there is evidence tending to show that the trees were of hut little value, and probably died from other causes, and that, therefore, only a portion of the injury which plaintiff’s witnesses were'directed to take into account in making their estimate of the entire injury was suffered from defendant’s wrongful act, a new trial should not he granted on the ground that the verdict was for a less amount than that indicated by the uncontradicted testimony of such witnesses as to the total amount of his loss.
    
      Appeal from Linn District Court. — Hon. Wm. G. Thompson, Judge.
    Monday, February 10, 1902.
    Action to recover damagtes to plaintiff’s premises by reason, of negligence of defendant in allowing the gas to escape from its pipes laid so near to and under the-soil of said premises, whereby such soil -was saturated with gas so that the grass and' trees upon and in front of said premises were killed. Verdict for plaintiff, which the court-refused, on motion, to set aside as inadequate in amount. From judgment on the verdict, plaintiff appeals. —
    Affirmed-
    
      Jamison & Smyth for appellant.
    
      J. 0. Oooh, J. II. Preston and H. Loomis for appellee.
   McClain, J. —

The evidence related to damage to trees and grass growing upon the parking in front of plaintiff’s lot, and plaintiff’s contention is that, if defendant is liable at all (and the verdict for plaintiff establishes such liability), then there was no justification, under the evidence, for not allowing a much larger sum by way of damages. Undoubtedly, the evidence tended to- prove a much larger amount of damage, but the instructions to the jury, which are not complained of by either party, and must be treated as the law of the case, directed the jury to inquire as to the extent of the damage to the plaintiff by reason of the killing of the grass and the destruction of the trees, and there was evidence as to what the expense would be of restoring the grass -and replacing the trees, as well as evidence tending to show that the- trees were of little value, and probably died from other causes. Now, we think it is plain that the jury might have found that only a part of the loss of which plaintiff complained, and to which the evidence related, was due to defendant’s wrong, and we cannot say that a special finding by the jury to that effect would have been without support. It is doubtful whether the jury is bound absolutely by the evidence of witnesses, even though uncontradicted, where they testify with reference to their own judgment as to the value of property, or the measure of damage thereto, or the value of services, or a like question; and there are authorities holding that in such cases the jurors may form an independent judgment of the amount of the value or damage, even though such judgment differ from that of all of tbe witnesses wko spoke upon the subject. Chicago, K. & W. R. Co. v. Drake, 46 Kan. 568, (26 Pac. Rep. 1039); McReynolds v. Railway Co., 106 Ill. 152; Stevens v. City of Minneapolis, 42 Minn. 136, (43 N. W. Rep. 842) ; Laflin v. Railroad Co. (C. C.), 33 Fed. Rep. 415, 422; Hull v. City of St. Louis, 138 Mo. 618, (42 L. R. A. 753, and notes s. c. 40 S. W. Rep. 89) ; Head v. Hargrave, 105 U. S. 45, (26 L. Ed. 1028. But, without now announcing a definite conclusion on that question, we are satisfied to hold that the jury may, under the evidence, have found that plaintiff suffered only a portion of the damage which the witnesses for the plaintiff were directed to take into account in making their estimate of the entire injury which plaintiff suffered by defendant’s wrongful acts, and therefore we would not be warranted in granting plaintiff a new trial on the ground that the verdict of the jury was for a less amount than that indicated by the uncontradicted testimony of plaintiff’s witnesses as to the total amount of his loss. — Affirmed.  