Chicago

• Decision Date: 06 December 1890
• Citation: 45 Kan. 85,25 P. 210
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. GEORGE MULLER

25 P. 210

45 Kan. 85

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. GEORGE MULLER

Supreme Court of Kansas

December 6, 1890

Error from Sedgwick District Court.

THE opinion states the case.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

Sluss & Stanley, for defendant in error.

GREEN C. HORTON, C. J., VALENTINE, J., concurring. JOHNSTON, J.

OPINION

GREEN C.:

George Muller owns the northwest 1/4 section 28, township 29 south, of range 2, in Sedgwick county. The plaintiff in error condemned a right-of-way for a railroad over said land, and five and twelve-one-hundredths acres were taken, for which the commissioners allowed $439.40. The defendant in error appealed from this award to the district court, and a jury assessed his damages at $800, and a judgment was rendered accordingly. The railroad company excepted, and brings the case here.

I. The first error alleged is in the admission of evidence.

The plaintiff was asked how much less the land was worth immediately after the railroad went through, per acre, than it was before. An objection to this question, on the ground that it called for a conclusion, was overruled, and the witness was permitted to answer: "Five dollars less an acre." This, with similar evidence, it is claimed, is clearly prejudicial, because it is a statement of the judgment and conclusion which the jury should reach and not the witness; that it was improper to permit the witness to usurp the province of the jury and give his own opinions and conclusions. In the case of W. & W. Rld. Co. v. Kuhn, 38 Kan. 675, the following question and answer were held to be erroneous:

"Q. How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvement proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently? A. About $ 2,100."

The court said, with reference to this evidence:

"The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine, and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff's damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land either before or after the right-of-way was taken; nor any reference to any specific fact which might tend to show what such market value was, or to increase or diminish the same; but it involved all these things and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities: 3 Suth. Dam., ch. 16; Union Rld. Co. v. Moore, 5 Am. & Eng. Rld. Cases, 352, note, and cases there cited; McReynolds v. B. & O. Rly. Co., 14 id. 175, note, and cases there cited; Neilson v. Chicago &c. Rly. Co., 14 id. 244, note, and cases there cited; G. & G. Rld. Co. v. Foreman, 20 id. 225, note, and cases there cited."

We can see no very great distinction between the two questions; each calls for the opinion and conclusion of the witness, and upon the authority of the cases, supra, it was error to permit the question and answer. (G. H. &amp W. R. Co. v. Hall, 2 Cent. L. J. 456; Elliott, Roads and S. 198; Mills, Em. Dom., § 165; Ohio &c. Rly. Co. v. Nickless, 71 Ind. 271; Dalzell v. Davenport, 12 Iowa 437; Hosher v. Kansas City, 60 Mo. 329; Tingley v. Providence, 8 R.I. 493; Rockford v. McKinley, 64 Ill. 338; Alabama &c. Rld. Co. v. Burkett, 42 Ala. 83; Cleveland &c. Rld. Co. v. Ball, 5 Ohio St. 568...