#### Chicago, Burlington & Quincy Railway Company et al. v. S. F. Fenstermaker.

• This case is controlled by the decision in C., B. & Q. Ry. Co. et al. t. DeFreitas, ante, p. 228.

Action on the case. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1906.

Affirmed upon remittitur,

Opinion filed June 1, 1907.

Kirby & Wilson, for appellants.

John A. Bellatti, for appellee.

Per Curiam.

Appellee is the .owner of lots No. 135 and 136 in the Car Shops addition to the city of Jacksonville, improved with a dwelling house, outhouses, fruit trees and grape vines. He recovered a verdict and judgment against appellants for $200, for damages resulting to his property by reason of the construction and operation of a railroad. The record in this case is substantially identical with the record in the case in which Anton J. DeFreitas recovered a judgment against the' same defendants for $350, for damages to real estate similarly situated with reference to the same railroad, in which case an opinion is this day filed in this court. (Ante, p. 228.)

The first instruction given at the request of appellee in the case at bar is the same instruction which is criticized in the opinion in the DeFreitas case, and for the reasons stated in that opinion a like conclusion is arrived at in this case.

If appellee will, within 20 days, remit $50 from the amount of Ms judgment it will be affirmed for-$150, otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur. Remittitur filed and judgment affirmed.