Houston Belt & Terminal Ry. Co. v. Lynch

• Decision Date: 20 March 1916
• Docket Number: (No. 7148.)
• Citation: Houston Belt & Terminal Ry. Co. v. Lynch, 185 S.W. 362 (Tex. App. 1916)
• Parties: HOUSTON BELT & TERMINAL RY. CO. v. LYNCH et al.
• Court: Texas Court of Appeals

185 S.W. 362

HOUSTON BELT & TERMINAL RY. CO. v.LYNCH et al.

(No. 7148.)

Court of Civil Appeals of Texas. Galveston.

March 20, 1916.

Rehearing Denied April 20, 1916.

Appeal from District Court, Harris County; John A. Read, Judge.

Action by John Lynch and others against the Houston Belt & Terminal Railway Company.From a judgment for plaintiffs, defendant appeals.Reversed and remanded, unless remittitur be filed.

Andrews, Streetman, Burns & Logue, of Houston, for appellant.John Lovejoy and Presley K. Ewing, both of Houston, for appellees.

LANE, J.

This suit was brought in the district court of Harris county by John Lynch, Julia Lynch, John J. Lynch, James A. Lynch, and Mary M. Clasick against the Houston Belt & Terminal Railway Company, and other railway companies, which were later dismissed from the suit before trial, to recover damages to certain property owned by plaintiffs in the city of Houston, which they allege was caused by defendant by the construction of certain railroad tracks near said property, and by the operation of engines, cars, and trains over said tracks.

The trial was had before a jury, to whom the cause was submitted upon two special issues:

First."What was the fair market value of plaintiffs' property in question immediately before the construction in or about the summer or fall of 1910, after August 7th in that year, of the tracks of which plaintiffs complain, and the beginning of operations thereover?"Second."What was the fair market value of plaintiffs' property in question immediately after the construction in or about the summer or fall of 1910, after August 7th in that year, of the tracks of which plaintiffs complain, and the beginning of operations thereover?"

To the first question the jury answered, "$2,750;" and to the second, $1,450."Upon these answers the court rendered judgment for plaintiff against the defendantHouston Belt & Terminal Railway Company for the sum of $1,300 damages and for $360 as interest thereon from date of said damage to date of the judgment.

Appellant presents the following assignment and propositions thereunder:

First Assignment: "The answer of the jury to special issue number two submitted to them, wherein the jury found that the market value of the property in question, just after the tracks complained of were constructed and operations begun thereover, was $1,450, is wholly without support in the evidence, for that the plaintiff himself admitted that the market value of said property at said time was from $1,500 to $1,600, and no further evidence as to the market value of said property at said time was offered by plaintiff, and all the witnesses called by the defendant testified that the value of said property at said time was in excess of what plaintiff admitted it was, and there was no sufficient evidence to justify the jury in discarding all the testimony, both of plaintiff and of defendant, and finding a less value of said property at said time than was established by such testimony."

Proposition: "First.Where the issue of the market value of real property at a given time is in dispute, and both the plaintiff and the defendant have by their testimony fixed such value, a jury is unwarranted in finding the value to be a sum not within the range of the testimony so given.Second.Market value as distinguished from intrinsic value, being susceptible of proof by expert or opinion testimony only when such testimony comes from one peculiarly qualified to give it, is not presumed to be within the common knowledge of jurors, and the verdict of a jury finding market value must be supported by testimony and cannot stand against testimony.Third.A verdict fixing market value at a less or greater sum than testified to by any witness is without support in the evidence and should be set aside, because such verdict is of necessity based either upon conjecture or upon the nonexpert opinions of the jurors, which opinions would not themselves be admissible in evidence were the jurors sworn as witnesses.Fourth.The verdict in question, in that it finds the value of the property in dispute immediately after the construction of the tracks complained of and beginning of operations thereover to be a sum less than was testified to by the plaintiff himself, who was the only witness tendered by him upon that fact, is manifestly without support in the evidence, and based either upon conjecture or upon the nonexpert opinions of the jurors, which, not being admissible as evidence if offered, cannot be permitted to control the admitted and competent testimony to the contrary."

The testimony as to the value of the property immediately before and immediately after the acts complained of was as follows:

The plaintiff, John Lynch, testified:

"Immediately after the Houston Belt & Terminal Railway Company constructed the tracks and other connections in proximity to said property, which were constructed by it after August 9, 1910, and thereupon began its operations since conducted over such tracks, the fair market value of my property was about $1,500, or $1,600 would be the outside value, taking `market value' as meaning the price which was to be paid for a piece of property if sold by one who desired to sell, but who was not obliged to sell, and bought by one who was under no necessity of buying it, but desired to buy it.I am, from my especial familiarity with this property as I have testified about, acquainted with its market value at the times you have just inquired about.In fixing those values, I have stated, I took into consideration the adaptation of this property to such uses as it was capable.In fixing those values, I took into consideration two new main lines that are constructed practically around my place, and the raising of the roadbed or street to about three feet above the grade, sinking the ditch in front along my place and leaving it stand full of water the year around, and then in placing switches so that they were switching six or seven hours out of the twenty-four hours continuously — not continuously, but for an average of about seven or eight hours — switching right in front of my place continuously every twenty-four hours, and principally at night, and making the place impossible to live in or to be of any value for any uses.I took into consideration the increase in the switching and of course the increase in trains; the noise and smoke of course is all greater.* * * All those constructions were put down there inside of two weeks, about August 10, 1910."

He testified on cross-examination as follows:

"I said that after 1910 it was only worth $1,500 or $1,600, the whole place.As to whether I will take $1,600 for it now, after this suit is over and I see what treatment I get, I will talk to you about that.I will take $1,600 for it if you will give me the balance in damages.Without any question of damages, I will not take $1,600 for it, not right now.As to whether I will take $2.000 for it; you can't make me take anything for it now, because it is in litigation.As to whether I will take $2,500 for it; it is not a question of sale now, I understand.It is not for sale right now, it is in litigation; I can't sell it."

The defendant's witness L. H. Dunn testified:

"In my judgment, the reasonable market value of that property in July of 1910 was approximately $4,000.In my judgment, the reasonable market value of that property, considering its uses for residence purposes at that time, was $1,800.I said that the reasonable market value of that property at the time stated was approximately $4,000.I mean by that the property possessed that value for a warehouse site or for any general store purposes.* * * I don't think there was any difference in the values of that property brought about by the change that was made in the condition of those tracks before 1910 and now.I don't think there was any difference in the value of Lynch's property caused by that change."

The defendant's witness J. W. Burkett testified:

"I am familiar with the reasonable market value of the property of Mr. Lynch just before that change was made in those tracks; I have my opinion on the subject.I think the lot by itself, it being a corner lot, was probably worth anywhere from $1,600 to $1,800 at that time, and the buildings and improvements there were worth about $1,000; that would be about $2,800 for the whole thing, the lot...