Omaha Southern Railway Co. v. Beeson
| Decision Date | 01 March 1893 |
| Docket Number | 4744 |
| Citation | 54 N.W. 557,36 Neb. 361 |
| Parties | OMAHA SOUTHERN RAILWAY COMPANY v. ALLEN BEESON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Cass county. Tried below before CHAPMAN, J.
AFFIRMED.
A. N Sullivan and Byron Clark, for plaintiff in error
E. H Wooley and Beeson & Root, contra.
This is a petition in error from Cass county, and brings up for review the judgment of the district court, assessing the damage of defendant in error by the appropriation of certain property belonging to him adjoining the city of Plattsmouth by plaintiff in error for right of way purposes in the summer of 1890. The first error alleged is the refusal of the court to substitute for the railroad company, the defendant below, certain citizens of Plattsmouth who had agreed to indemnify said company for all money expended for right of way through the property of defendant in error. There is no error in the ruling complained of. A sufficient answer to the argument of the plaintiff in error is, that the proposed intervenors are apparently satisfied with the ruling of the district court, the only party complaining being the railroad company. But the ruling was right, for the reason that the parties named had no direct interest in the subject of the controversy. There was no privity between them and the defendant in error, whose property had been appropriated. Their interest was a mere contingent liability to answer to the railroad company in case judgment was recovered against it in the condemnation proceeding. It was not an agreement made with the company for the benefit of the defendant in error, upon which an action could be maintained by the latter. There is no power conferred upon the court to dismiss a defendant against whom a cause of action is alleged and substitute in his stead a stranger to the record on the sole ground that the latter has agreed to satisfy the judgment of the court.
2. The second assignment is the sustaining of the challenge for cause, by the defendant in error to Edward O'Neill, who was called as a juror. In our opinion the juror was competent and the challenge might properly have been overruled, but so far as the record discloses the jury selected was perfectly fair, and the ruling complained of was, at most, error without prejudice. In superintending the impaneling of the jury some discretion is necessarily confided to the trial court, and the excusing of a juror by it for cause will not be held ground for reversal, unless there appears to have been a clear abuse of discretion. (Thompson on Trials, 88, and authorities cited; Richards v. State, 36 Neb. 17, 53 N.W. 1027.) There is a wide distinction between the retention of a juror shown to be incompetent by reason of prejudice, or the like, and the improper excusing of one on the same grounds. In the one case the law presumes prejudice to the complaining party, while in the other, in the absence of proof, the presumption is that the jurors selected possess all of the statutory qualifications; hence, the action of the court, if erroneous, is not prejudicial to the rights of either party.
3. Objection is next made to the admission in evidence of a photograph of the premises taken before the construction of the road. There was no error in the admission of the evidence. The condition and value of the premises before the construction of the road were proper subjects for the jury to consider, and where an inspection of the premises is proper but impracticable or impossible, a photographic view of it is admissible. (Thompson on Trials, 869.)
4. Defendant in error was permitted to introduce evidence tending to prove that before the construction of the road, his property, about twenty-one acres, was susceptible of subdivision into smaller tracts or lots, which fact it was claimed rendered it more valuable, and that after the building of the road, subdivision thereof was impossible, by reason of which its value was greatly diminished. It is not disputed that the property in question adjoins the city of Plattsmouth and was suitable for subdivision into suburban lots facing upon a public street. If the railroad track was so constructed as to render subdivision impracticable and the value of the property thereby impaired, such fact amounts to a direct injury to the property, for which the owner may recover in a condemnation proceeding. (Atchison & N. R. Co. v. Boerner, 34 Neb. 240, 51 N.W. 842; Atchison & N. R. Co. v. Forney, 35 Neb. 607, and cases cited.) The court therefore did not err in receiving the evidence over the objection of plaintiff in error.
5. It is next argued that the court erred in receiving proof of annoyance to defendant in error on account of smoke and ashes from the engines passing on the track near his residence. It is evident from the record that the evidence referred to was admitted for the purpose of showing the value of the property after the construction of the road, and for no other purpose. For that purpose it was clearly admissible. If the house was rendered intrinsically less valuable by reason of dust and smoke from passing engines, that fact was admissible not as an independent element of damage, but to be taken into consideration in determining the value of the entire tract as it then was burdened by the right of way.
6. Defendant in error, while testifying in his own behalf, was asked about the necessity of moving his house, and when about to answer an objection was made, whereupon he said, "I will drop that, and state my...
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