Houston Belt & Terminal Ry. Co. v. Vogel

• Citation: 179 S.W. 268
• Decision Date: 21 June 1915
• Docket Number: (No. 6959.)
• Parties: HOUSTON BELT & TERMINAL RY. CO. v. VOGEL et ux.
• Court: Court of Appeals of Texas

179 S.W. 268

HOUSTON BELT & TERMINAL RY. CO. v. VOGEL et ux.

(No. 6959.)

Court of Civil Appeals of Texas. Galveston.

June 21, 1915.

Rehearing Denied October 14, 1915.

Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge.

Action by John Vogel and wife, against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

See, also, 156 S. W. 261.

Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellees.

McMEANS, J.

John Vogel and wife sued the Houston Belt & Terminal Railway Company, alleging damages by way of depreciation in the market value of certain real estate in the city of Houston owned by them, the depreciation complained of being charged to the fact that the Houston Belt & Terminal Railway Company had built certain tracks in front of said property and had carried on railway operations over said tracks from and after the early part of the year 1910. Defendant answered by general denial, and pleaded that the property, instead of depreciating, had enhanced in value by reason of the construction. The case was tried before a jury upon special issues, and damages to plaintiffs' property from railroad construction and operations in proximity thereto were found by special verdict, as follows:

"(1) What was the fair market value of plaintiffs' property, inclusive of improvements thereon, immediately before the construction and operation of the defendant's railroad in the vicinity of it? Answer: $10,000.

"(2) What was the fair market value of plaintiffs' property, inclusive of the improvements thereon, immediately after such construction and operation of defendant's railroad? Answer: $5,250.

"(3) If the market value of said property was less immediately after than immediately before the construction and operation of defendant's railroad, was the depreciation or decrease of value caused by such construction and operation of defendant's railroad? Answer: Yes."

On this verdict a judgment was rendered in plaintiffs' favor for $4,750, from which the defendant has appealed.

Appellant's first, second, third, fourth, and fifth assignments of error in different forms contend that the verdict was excessive, under the claim that the value found before the railroad operations, to wit, $10,000, was too large, and the value found after, to wit, $5,250, was too small. The claim is made, particularly in the first assignment, that the value fixed before the railroad operation was so grossly excessive as to indicate that the jury was actuated by sympathy, bias, prejudice, or some other improper motive.

We shall not undertake to set out the testimony bearing upon the issues presented by the assignments, but find that the evidence adduced upon the trial fairly warranted the verdict in that regard. Seven witnesses, including the plaintiff John Vogel, testified as to the market value of the plaintiffs' property before and after the construction of defendant's railroad and the operations thereover, and no two of them agreed. Vogel's estimate was that the property, including the improvements thereon, was worth before the construction and operation $12,500, and after $6,000; his witness W. E. Carter placed the value before at $11,500, and after at $6,000; while the five following named witnesses placed the value as follows: W. H. Taylor, $5,187.50 before, and $8,750 after; J. W. N. Burkett, $5,400 before, and $6,250 after; J. H. McCracken, $6,000 before, and an increase in value of 30 to 50 per cent. after; L. W. Murdock, $5,500 before, and $11,000 after; and L. Dunn, $6,250 before, and the same amount after. As before shown, the jury found the value to be $10,000 before, and $5,250 after. There was testimony admitted which would warrant a finding that there was no demand for property situated as was plaintiffs' for other purposes than residences; and the witness last named testified that plaintiffs' property for residence purposes had decreased 75 per cent. by reason of the construction and operation of defendant's railroad. The witnesses testified at length as to their knowledge of property values and as to their methods of arriving at the market value of plaintiffs' property both before and after the construction and operation of defendant's railroad; and it was a matter peculiarly within the province of the jury to weigh the testimony, judge the credibility of the witnesses, and to reach a conclusion supported by testimony to which they gave credence, or a conclusion reached by blending all the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry. We cannot say, therefore, that the jury, in arriving at the conclusion they reached, did so without regard to the testimony, or that their verdict was against the preponderance of the evidence to that degree which shows that manifest injustice has been done, or to indicate that they were actuated by sympathy, bias, prejudice, or some other improper motive. They were not concluded by the opinion of experts, but in weighing the testimony they had a right to apply their own experience and knowledge, and to deduce therefrom the truth as they believed it. Thus in Lawson's Expert and Opinion Ev. (2d Ed.) p. 496, under rule 61, it is said:

"We have seen the opinions of attorneys testifying to the value of lawyers' services are not conclusive on the jury, who may act independently or in opposition to them, applying to the case their own experience and knowledge of the character of the services. The same is true of the opinions of all experts and nonexperts as to value."

In Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028, it is said:

"While they [the jury] cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry."

In Patterson v. Boston, 20 Pick. (Mass.) 166, it is said:

"Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties."

The jury were not compelled to credit all the testimony of any witness or reject it all (Railway v. Taylor, 20 Tex. Civ. App. 654, 49 S. W. 1055), but could have accepted as true a portion of the testimony of any or either of them, rejecting the remainder, in order to base their verdict upon what they believed to be the real facts. Garcia v. Sanders, 90 Tex. 109, 37 S. W. 314.

The assignments do not point out reversible error, and are overruled.

The sixth assignment complains that the court erred in overruling defendant's motion to exclude all of the testimony of the plaintiff John Vogel as to the value of his property, the motion being predicated upon the grounds that the cross-examination of plaintiff developed that he was not qualified to give an opinion as to the market value of his property, since it showed that he had never been in the real estate business; that the estimate which he gave was not based on any actual sales with which he was familiar; that he had had no experience in fixing the values of property or estimating such values; and that his estimate was simply an unsupported opinion.

On a former appeal of this case a judgment in favor of plaintiffs was reversed, for the reason that the plaintiff John Vogel, although he testified that he was not acquainted with the market value of property in question, nor of the market value of property in...