Chi., B. & Q. R. Co. v. Shafer

• Decision Date: 16 September 1896
• Citation: 49 Neb. 25,68 N.W. 342
• Parties: CHICAGO, B. & Q. R. CO. v. SHAFER ET AL.
• Court: Nebraska Supreme Court

49 Neb. 25

68 N.W. 342

CHICAGO, B. & Q. R. CO.

v.SHAFER ET AL.

Supreme Court of Nebraska.

Sept. 16, 1896.

Syllabus by the Court.

1. While the jury should not, in assessing damages in favor of a property owner upon the appropriation of land for right of way purposes by a railroad company, take into consideration, as a distinct element of damage, such remote contingencies as the frightening of horses and injury to persons and property by passing trains, such matters are proper subjects of inquiry in determining to what extent, if at all, the value of the property in question has been impaired by the construction and operation of the road.

2. The neglect of the district court to file with the clerk instructions given, in order to be available as ground for reversal, must be called to the attention of that court by means of the motion for a new trial. Tagg v. Miller, 6 N. W. 764, 10 Neb. 442.

3. One who has resided upon and owned real estate for 20 years, and is acquainted, from hearsay, with the recent sales of land in the vicinity, and the prices paid therefor, is a competent witness to the value of his own property.

4. Error in receiving the testimony of a witness who has not been shown to possess the requisite knowledge of the subject involved is cured when, by means of the cross-examination, a sufficient foundation is laid for such testimony.

Error to district court, Seward county; Bates, Judge.

Action by Ezra B. Shafer and others against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiffs, defendant brings error. Affirmed.R. S. Norval and J. W. Deweese, for plaintiff in error.

Biggs & Thomas, for defendants in error.

POST, C. J.

This proceeding presents for review the judgment of the district court for Seward county, awarding in favor of the defendant in error Shafer damage on account of the appropriation by the plaintiff in error, the Chicago, Burlington & Quincy Railroad Company, of the property of the former for right of way purposes. In the brief of counsel three reasons are assigned for a reversal of the judgment complained of, and which will be noticed in the order presented.

The trial court, among other instructions relating to the measure of damage, gave the following: “No. 1. The jury are instructed that in determining the amount of damages, if any, which the plaintiff is entitled to recover by reason of the location and operation of defendant's said railroad, you may take into consideration all facts and conditions which actually tend to depreciate the market value of the plaintiff's land, considering the close proximity of said railroad to defendant's [plaintiff's] buildings.” “No. 6. You should not take as a separate and distinct basis for the assessment of damages such remote contingencies as the frightening of horses, liabilities of fires, and damage to persons and property from passing trains. Such contingencies are only to be considered for the purpose of determining whether, and to what extent, the value of the property will be decreased by the building and operation of the railroad. If, in consequence of its exposure to such dangers, the actual value of the property is diminished to any extent, then such decrease in value measures the actual loss to the owner.” It is argued, by way of criticism of these paragraphs, that they lack precision as a statement of the law of the case, and that they authorize a recovery for purely speculative damages,--such, for instance, as negligence in the future operation of the road. In Railroad Co. v. Beeson, 36 Neb. 361, 54 N. W. 557, it was said, “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.” And the rule there recognized was, in Railroad Co. v. O'Connor, 42 Neb. 90, 60 N. W. 326, applied to a state of facts substantially like those here involved. Aside from the paragraphs quoted, the jury were, in substance, charged that it was their duty--First, to ascertain from the evidence the market value of the plaintiff's land actually taken for right of way, to wit, 3.01 acres; second, to ascertain in like manner the depreciation in values if any, of the plaintiff's entire tract, of 40 acres, resulting from the construction and operation of the defendant's road through said premises, and to return a verdict in favor of the former for the aggregate of the amount so found. And by still another paragraph the jury were advised that they should, in the assessment of damages, take into consideration such injuries to the property as necessarily and actually result from the legal and proper construction of the defendant's road, and from its future lawful and perpetual use. The charge, as a whole, fairly states the rule...