OPINION
CAMPBELL, C.
Plaintiff Railway Company brought condemnation proceeding
seeking to obtain right of way across land of defendants in
Grundy County for the purpose of constructing and maintaining
thereon its double track railroad. The commissioners duly
appointed awarded defendants damages in the sum of $ 1000.
Exceptions timely filed by the defendants to the report of
the commissioners were tried to the court and a jury,
resulting in a verdict and judgment for the defendants in the
sum of $ 2250. The plaintiff has appealed.
The
record discloses that the following part of plaintiff's
statement is correct, and we therefore adopt it:
"Defendants' land was a farm of 162 acres consisting
of two cornering 80's joined by a 5-acre strip. The north
80 abutted upon a public highway on the north, with a
residence, barns and other improvements facing on the road.
The condemnation involved a change in an existing line of
railroad. The old line had been there since 1871 and was a
single track on the center of a 100 foot right of way which
intersected the north 80 on a straight line running from
southeast to northwest with 7.64 acres on the north side. For
the purpose of shortening the line,
reducing the curve to the east, the plaintiffs condemned a
triangular tract abutting the old right of way on the north
and running from the width of 200 feet on the east side of
defendants' land to a point at some 900 feet west of the
east line of the 80, the total amount of land taken being 1.8
acres.
"Part
of the north 80 the improvements, the land condemned and the
location of the railroad are shown on the plat attached to
the petition and the defendants' plat. The latter plat as
well as various photographs of the old and new line
introduced by defendants have been filed with the clerk of
this court under stipulation of the parties. Plaintiff's
improvement included substitution of a double track for the
old single track, and the new fill and tracks had been
constructed at the time of the trial. When the new tracks
were constructed the old rails were taken up and a portion of
the old right of way, as indicated in the plats, was
abandoned by plaintiff.
"The
new right of way line was 130 feet closer to the house and
200 feet closer to the barn than the old right of way. On the
east side of the land and south of the barn the defendants
had maintained a feed lot for cattle and farther west, a
chicken yard. Both the feed lot run to within 40 feet of the
old road and the chicken yard ran to the old right of way and
both were shortened by the condemnation. When plaintiff took
possession and built the new track, it tore up about a
quarter of a mile of fences which plaintiff rebuilt at a cost
of $ 75.
"The
defendants had operated all the land in one body using the
portion north of the railroad for the home and improvements
and for feeding cattle. All the portion of the farm which was
tilled was on the south, as was the cattle pasture and some
feeding of cattle and hogs was done on the south. There was
water on both sides, on the south both well water and creek
water, prior to the condemnation of the private crossing
reached by a fence lane on the north. The plaintiff had
provided a new private crossing on the line of the old and
replaced the lane with a somewhat wider one, and at the time
of the trial had on the ground material for cattle guards
which were to be constructed by it.
"It
was the claim of the defendants, as disclosed by their
exceptions and evidence, that the condemnation and change in
the right of way and the substitution of two tracks for one
limited the facilities for feed yards for cattle, took away
part of the grass run available for the chickens, and made a
more inconvenient crossing due to the presence of two tracks
rather than one. There was also evidence that the smoke from
trains settled about the house and improvements to a greater
extent than it would with the old line. By the evidence of
the defendants the only ground available for the improvements
and for feed lots adjacent to sheds and granaries was on the
north side of the railroad. It appeared, however, from
defendants' own evidence that there was
available additional higher ground for feed pen for cattle
and that by using some lower ground a feed pen as large as
the old one could be provided."
Eleven
witnesses, called by the defendants, in giving their
testimony, estimated the fair market value of defendants'
land prior to the condemnation at $ 70 to $ 100 an acre, and
several of them placed its reasonable value after the
appropriation at $ 37.50 to $ 45 an acre.
The
plaintiff introduced evidence tending to show that the damage
caused by the appropriation was negligible.
Further
evidence will be stated in the course of the opinion.
Plaintiff
contends that the court erred in permitting defendants'
witnesses to testify "as to the amount that
defendants' farm had been damaged by the
condemnation." In support of the contention it is argued
that the testimony was an improper conclusion of the witness
and without proper bearing upon the correct measure of
compensation. In the case of Rourke v. Railway, 221
Mo. 46, 65, 119 S.W. 1094, the court ruled that that
character of evidence was admissible.
Plaintiff
argues that the court erred in permitting defendant Lyda
Hosman to testify as to the danger from trains at the new
private crossing. Plaintiff concedes that it was proper to
introduce evidence showing the physical situation, but
insists that it was improper for a witness to express an
opinion that the crossing was dangerous.
On this
subject defendant, Lyda Hosman, testified as follows:
"Q.
I don't know whether I understand that, you mean the
space between the railroad dump or embankment? A. Between the
north rail and the gate.
"Q.
Is what, is so short it does what? A. Well the horses'
heads are in the gate if you are going north and the hind
wheels of the wagon on the track.
"Q.
What has that to do with it, what inconvenience is that, if
any? I am not a farmer, I wouldn't understand it, tell me
why isn't that all right? A. Suppose while you are doing
that a train come along going sixty miles an hour, what would
happen?
"Q.
Well, what is the situation about trains there, tell the
jury, to the east? A. Well, they are right there before you
can see them.
"Q.
Well how close does a train get to you, you mean there is a
curve there east of the barn? A. A curve.
"Q.
And is there a cut also there? A. Yes, sir.
"Q.
You say a train is going sixty miles an hour or any other
miles an hour, how far is the train from your barn before you
naturally see it as you have looked? A. Well I never measured
it, I judge three hundred feet.
"Q.
One hundred yards? Well now at what rate of speed, what rates
of speed do trains customarily come along on the new main
line. A. Sixty miles, and more.
"Q.
That's the passenger trains? A. Yes, sir. . . .
"MR. HUBBELL: Q. Well, what is the
likelihood or situation with reference to a man protecting
himself from a train approaching at say fifty or sixty miles
an hour from the east on the new main line, when you are on
the north side of the new main line going in your feed lot?
"MR.
LEE: We object to that question asked in that way, he can
state the physical facts and then the jury can determine from
that, and from what they will see themselves when they go
down there, as to the distances; he said it was 300 feet
away, he thought he could see a train 300 feet away.
"THE
COURT: Objection overruled, let him answer.
"To
which ruling of the court the plaintiff by counsel then and
there duly excepted at the time and still excepts.
"MR.
HUBBELL: Q. You may state, what is the ability of one to see
there and what time one has to get out of the way of a train
when he is using the gate on the north side of the main line
going in your barn lot?
"MR.
LEE: We object to it further invading the province of the
jury.
"THE
COURT: Objection overruled.
"To
which ruling of the court the plaintiff by counsel then and
there duly excepted at the time and still excepts.
"MR
HUBBELL: Q. The court...
