Burlington & M. R. R. Co. v. Schluntz
| Decision Date | 11 July 1883 |
| Citation | 16 N.W. 439,14 Neb. 421 |
| Parties | THE B. & M. R. R. CO., PLAINTIFF IN ERROR, v. CHRISTIAN SCHLUNTZ, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Tried below before POUND, J.
AFFIRMED.
Marquett & Deweese, for plaintiff in error, on question of damages and method of examining witnesses, cited: Railroad Co., in Matter of, 53 Barb. 457. 35 Howard's Pr. (N. Y.), 420. R. R Co. v. Hummel, 27 Pa. 99. R. R. Co. v. Lazarus, 28 Pa. 203. M. V. R. R. Co. v. Doran, 17 Minn. 188 R. R. Co. v. Payne, 16 Barb. 273. R. R. Co. v Young, 33 Pa. 175. The damages are to be shown by facts, but must be estimated by the jury, and not of opinions of witnesses. Evansville R. R. v. FitzPatrick, 10 Ind. 120. Farrard v. C. R. R., 21 Wis. 435. Harrison v. Iowa R. R., 36 Iowa 323. Alabama R. R. v. Burkett, 42 Ala. 83. F. E. & M. V. R. R. v. Whalen, 11 Neb. 587. City of Parsons v. Lindsay, 26 Kan. 430. Damages outside of right of way. Eaton v. R. R., 59 Me. 520. Mills on Eminent Domain, sec. 220. Perry v. Worcester, 6 Gray., 544.
Chapman & Beeson, for defendant in error, on competency of witnesses, cited: Smalley v. R. R., 36 Iowa 571. Snyder v. R. R., 25 Wis. 60. Dalzell v. Davenport, 12 Iowa 440. Damages: R. R. v. McComb, 60 Me. 290. R. R. v. McClure, 29 Ind. 536. R. R. v. Lee, 13 Barb. 169. Mason v. R. R., 31 Me. 215. Mills on Eminent Domain, secs. 165, 168. Cooper v. Randall, 59 Ill. 317.
The matters assigned for error, and relied on by counsel as cause for a reversal of the judgment, are found in the evidence on the question of damages, and in the instructions of the court to the jury. The first point made by counsel for the plaintiff in error in their brief is, that the defendant and certain of his witnesses were permitted "to testify as to the value of the land before and after the location of the road, without showing themselves qualified to fix such values."
The defendant himself was the first witness called. He was subjected to a very lengthy examination upon the question of his competency to testify as to the value of the property. He swore explicitly that he knew its value, and from the fact that he had lived there for twelve years, had made the improvements upon it, and appears to have possessed ordinary intelligence at least, I am satisfied he was qualified to give his opinion on that point. So, too, of the other witnesses, most of whom were residents of the immediate neighborhood, and all of them well acquainted with the property for several years, and evidently as well informed as to its situation, condition, and value as any that could have been called. In this respect there was no error.
The second objection urged to the ruling of the court on the admissibility of evidence is, that several of the witnesses were permitted, against objection, to give their opinions as to the amount of damages which the defendant had sustained on account of the location of the road, and its subsequent construction by the railroad company.
It appears from the bill of exceptions that several witnesses were examined as to the injury done to certain growing crops, outside of the right of way, during the construction of the road, by those engaged in it. In this connection several witnesses were permitted to give their opinions directly as to the amount of the damages done. Referring to some growing rye, the defendant himself was asked: "What damage was done to the crop?" The answer was "About ten dollars." To a similar inquiry respecting some wheat, this witness answered: "The damage to the wheat crop was eighty-five dollars." Testimony of like import was given by two or three of the other witnesses, one of them, Henry Inhelder, swearing that the damage to the wheat was $ 100. This was received under objections as to its competency.
In ruling upon this testimony, I think the court erred. Even if those injuries outside of the right of way were a proper subject of inquiry in this suit, which, however, I do not admit, the amount should have been left exclusively to the jury to find from descriptions given by the witnesses of the crops, their value, and the particular injuries done to them. Evansville, etc., Railroad Co. v. Fitzpatrick, 10 Ind. 120. Farrand v. The C. & N. W. R. R. Co., 21 Wis. 435. Lincoln v. Saratoga and Schenectady R. R. Co., 23 Wend. 425. Alabama & F. R. R. Co. v. Burkett, 42 Ala. 83. Harrison v. R. R., 36 Iowa 323. The question of the amount of the damages sustained by the trespass upon these crops was not one which called for expert testimony. Neither science nor unusual skill was involved in its solution. It was one which the jury, when the particulars of the injuries were brought to their notice, were quite as competent to answer as were the witnesses; and besides, its decision was within their own exclusive jurisdiction, which ought not to have been invaded.
But I am of opinion that back of this question of the competency of evidence lies the fact that this matter of damages by trespasses upon property outside of the right of way, was not then before the court for...
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