City of Omaha v. McGavock

• Decision Date: 03 March 1896
• Citation: 66 N.W. 415,47 Neb. 313
• Parties: CITY OF OMAHA v. MCGAVOCK.
• Court: Nebraska Supreme Court

47 Neb. 313

66 N.W. 415

CITY OF OMAHA

v.MCGAVOCK.

Supreme Court of Nebraska.

March 3, 1896.

Syllabus by the Court.

1. Held, that the evidence set out in the opinion was competent for the jury to consider, in connection with the other evidence adduced on the trial, for the purpose of determining whether the plaintiff's property was damaged by reason of the location and construction of the viaduct in the street in front of said premises.

2. The refusal of an instruction must be excepted to in the trial court, in order to lay the foundation for its review in this court.

3. A general exception to instructions, whether given or refused, is not sufficient. Exception must be specifically taken to each instruction, in order to have the same considered by the supreme court.

4. The verdict is supported by sufficient evidence.

Error to district court, Douglas county; Keysor, Judge.

Action by Alexander McGavock against the city of Omaha. There was a judgment for plaintiff, and defendant brings error. Affirmed.E. J. Cornish and J. H. Macomber, for plaintiff in error.

Francis A. Brogan, for defendant in error.

NORVAL, J.

Alexander McGavock recovered a judgment in the court below against the city of Omaha, in the sum of $2,374.50, for damages alleged by him to have been sustained by the reason of the location and construction of the Tenth street viaduct in said city, upon which street plaintiff's property abuts. To review said judgment, the city has removed the cause into this court. The assignments of error argued in the brief of the city attorney may be divided into three groups, namely: (1) Those relating to the rulings of the court upon the admission of testimony; (2) alleged errors in the giving and refusing of instructions; (3) the damages assessed by the jury are excessive, and contrary to the evidence. We will consider them in the order stated.

Complaint is made of the introduction of certain testimony of J. J. Berger and John W. Bell, witnesses for the plaintiff below. The former was tenant of the plaintiff, occupying the premises in controversy for business purposes prior and subsequent to the erection of the viaduct, which structure was completed in 1891. He testified that the travel over and along Tenth street, in front of plaintiff's property, previous to the construction of the viaduct, was fair, and the premises were in a first-class location for the business in which the witness was engaged, but that since the completion of the viaduct only a small portion of the traffic is over this street. The major portion goes over the viaduct, and some over the Eleventh street viaduct. The witness, being interrogated by plaintiff's attorney, testified, over the objections of the city, as follows: “Q. What portion of the traffic has gone over the street since the construction of the viaduct? (Objected to by the defendant as incompetent, immaterial, and not the proper way to prove damages; too remote and uncertain. Overruled, and defendant excepts.) A. I should judge it was a small one-third. Q. How does the change in the amount of traffic affect business in stores fronting on Tenth street? A. It affects it to quite an extent. Q. To what an extent, in your business? (Objected to by the defendant as calling for a conclusion, improper, immaterial, and not the proper way to prove damages, and too remote. Overruled, and defendant excepts.) A. I should guess it was about one-third; that is, I am getting one-third I used to have.” John W. Bell was called and examined as a witness on the part of the plaintiff, who, after testifying that he was engaged in the drug business in a part of the plaintiff's premises; that he was familiar with the traffic on Tenth street before and since the viaduct was constructed; that, prior to the commencement of the erection of the viaduct, plaintiff's property was an elegant location for retail purposes; and that the construction of the viaduct destroyed the traffic and affected the business on Tenth street,--testified as follows: “Q. Now, you may state, in your particular case, what effect the construction of that viaduct, and the traffic on the old surface Tenth street, have on your business. (Objected to by defendant as incompetent, immaterial, irrelevant, and calling for a conclusion of the witness. Objection overruled. Defendant excepts.) A. It made a difference in my business by about three thousand in a year. Q. What proportion was that of your entire business? (Objected to as incompetent, immaterial, and irrelevant, and calling for the conclusion of the witness. Objection overruled. Defendant excepts.) A. About one-quarter. Q. Do you mean that your gross receipts fell off by that much, or your profits? (Objected to by defendant as incompetent, immaterial, and...