Chi., R. I. & P. Ry. Co. v. Sturey
| Citation | 75 N.W. 557,55 Neb. 137 |
| Court | Supreme Court of Nebraska |
| Decision Date | 19 May 1898 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. STUREY. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A repetition of a proposition of law in the instructions is not reversible error, unless it appears that it operated to the prejudice of the unsuccessful party.
2. Where a railroad is built in an alley, the owner of the lot abutting thereon is entitled to recover from the railroad company the depreciation in value of the lot resulting from such construction of the railroad.
3. Where the answer of a witness is not responsive to the question propounded, the proper practice is to move the court to have such answer eliminated from the record.
4. The rule for ascertaining damages to real estate occasioned by the construction of a railroad contiguous or adjacent thereto is the difference in the value of the property immediately before and immediately after the improvement, unaffected by any increase or depreciation of property values generally in the same vicinity.
5. In estimating the value of real estate, the rental value may be taken into consideration.
6. Certain rulings of the trial court on the admission of evidence examined and approved.
Error to district court, Lancaster county; Tibbets, Judge.
Suit by Mary Sturey against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.
L. W. Billingsley and R. J. Greene, for plaintiff in error.
F. A. Boehmer and N. Rummons, for defendant in error.
The plaintiff below, Mary Sturey, is the owner of lot 40, block 1, Houtz's Place, in the city of Lincoln, which she occupies as a family homestead. In 1893, the defendant, without her knowledge or consent, constructed its railroad bed and laid its track over and across plaintiff's premises, and in the alley adjoining said lot, without condemning for right of way or making compensation for the loss. This suit was instituted to recover the damages sustained by reason of the premises, and the defendant has brought to this court for review the record of the judgment entered against it, assigning numerous grounds for reversal.
It is urged that the third paragraph of the charge should not have been given, because it was a repetition of the doctrine enunciated in the second instruction. A reversal cannot be obtained for that reason, since the verdict could not have been influenced by the giving of the instruction. The court has often asserted that the repetition of a proposition of law in the instructions is not reversible error, where it does not appear that the defeated party was prejudiced thereby. Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650;Carstens v. McDonald, 38 Neb. 858, 57 N. W. 757;Hill v. State, 42 Neb. 503, 60 N. W. 916;Carleton v. State, 43 Neb. 373, 61 N. W. 699;Gran v. Houston, 45 Neb. 813, 64 N. W. 245;Dixon v. State, 46 Neb. 298, 64 N. W. 961;Bank v. Thomas, 46 Neb. 861, 65 N. W. 895;Denise v. City of Omaha, 49 Neb. 750, 69 N. W. 119.
The court charged the jury that “the plaintiff, as the owner of said lot, has a right to use the thoroughfares, streets, and alleys adjacent thereto for the purposes of ingress and egress to and from said lot, without obstruction by railway tracks, and has the right to insist that the said adjacent streets and alleys shall be used only for public purposes; and if the railway track of the defendant, laid upon said alley adjacent to the said lot, obstructs the free passage to and from the said lot, and thereby damages the plaintiff, or in any manner specifically and directly occasions damage to the said property, then the defendant would be liable to plaintiff for such damage, less special benefits.”
It is urged that said instruction is erroneous, for the reason it was a repetition of another portion of the charge relating to the recovery of damages. As the defendant was not injuriously affected by the repetition under the authorities referred to above, this objection to the instruction is overruled.
The same instruction is also assailed on the ground that it incorrectly states the law applicable to the case. It was not necessary that defendant should have appropriated any portion of plaintiff's lot. To authorize a recovery, it was sufficient that her premises were depreciated in value by the location and construction of the railroad in the alley upon which the lot abuts. This principle is recognized by the instruction in question, and is sustained by the authorities. Gottschalk v. Railroad Co., 14 Neb. 550, 16 N. W. 475, and 17 N. W. 120;Railroad Co. v. Reinhackle, 15 Neb. 279, 18 N. W. 69; Railroad Co. v. Rogers, 16 Neb....
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