Indianapolis & W. Ry. Co. v. Branson

• Decision Date: 05 January 1909
• Docket Number: No. 21,161.,21,161.
• Court: Indiana Supreme Court
• Parties: INDIANAPOLIS & W. RY. CO. v. BRANSON et al.

172 Ind. 383

86 N.E. 834

INDIANAPOLIS & W. RY. CO.

v.BRANSON et al.

No. 21,161.¹

Supreme Court of Indiana.

Jan. 5, 1909.

Appeal from Circuit Court, Hendricks County; T. J. Cofer, Special Judge.

Condemnation proceeding by the Indianapolis & Western Railway Company against Rebecca Branson and others. From a judgment for defendant Branson, and from an order denying a new trial, plaintiff appeals. Reversed and new trial ordered.Otis E. Gulley, W. H. Latta, and L. H. Oberreich, for appellant. Geo. W. Brill and Geo. C. Harvey, for appellee.

JORDAN, J.

Appellant is an incorporated electric interurban railway company, seeking to condemn and appropriate a right of way for its railroad through Hendricks county, Ind. In fact this cause arises out of the same condemnation proceedings involved in the appeal of the Indianapolis & Western Railway Company v. Charles B. Hill et al. (No. 21,160, decided at this term) 86 N. E. 414. Appraisers were appointed to assess the damages resulting to the defendant Rebecca Branson (appellee herein). These appraisers made their report therein, assessing her damages for the appropriation of real estate at $500. She filed exceptions to this award, and the issue in respect to damages as raised and tendered by her exceptions was submitted to a jury for trial at the January term, 1907, of the Hendricks circuit court. After hearing all of the evidence in the case and the instructions of the court, the jury returned a verdict in her favor, assessing damages for the lands appropriated by appellant company for its right of way in the sum of $925. Thereupon appellant unsuccessfully moved for a new trial, assigning in its motion various reasons therefor. The court rendered judgment in favor of the defendant for the amount of damages assessed by the jury. Appellant appeals, and assigns as error the overruling of its motion for a new trial. Counsel for appellee interpose virtually the same objections and criticisms, in respect to appellant's brief and the record in this appeal, as they presented and urged in the case of Indianapolis & Western Railway Company v. Hill, supra. For the reasons stated or given in the decision in the latter case, these objections are overruled. The court on its own motion gave 10 instructions to the jury. Appellant's counsel at the proper time tendered to the court, with a request to give the same to the jury, five instructions. The court refused each of these instructions, to which ruling appellant excepted.

The evidence in the case establishes, among others, the following facts: On the south side of appellee's farm, which embraces 77 acres, and out of which lands appellant's right of way is appropriated, there is a public highway running east and west. Between this highway and the south line of her farm is located the right of way of the Vandalia Railroad Company, over which said company has for many years propelled by steam both passenger and freight cars. The dwelling house of appellee, wherein she and her husband and the members of her family reside, is about 200 feet north of the line of appellant's railroad. The strip of land appropriated is 60 feet wide and runs east and west adjacent to and parallel with the Vandalia railroad. Appellee and the members of her family, in order to reach the highway on the south side of her farm, are compelled to cross appellant's right of way and also the Vandalia railroad. There is a private crossing over the latter road, which she maintains and uses for the purpose of crossing over the latter road.

Evidence, over the objections of appellant, appears to have been given at the trial by appellee to show how far distant from the above-mentioned crossing trains and cars could be seen approaching, not only over appellant's road, but also over the road of the Vandalia Railroad Company, and how close a car or train would be to a person before it could be seen by such person. It was also shown that appellee and the members of her family used this crossing many times during each day. Manifestly this evidence was given for no other purpose than to show the danger to which appellee and the members of her family would be exposed by an approaching car or cars while crossing over the track of appellant's road in going to and from the public highway. By instruction No. 2 appellant requested the court to advise the jury to the effect that, in assessing damages, if any, to the residue of defendant's land, it would not be warranted in anticipating and taking into consideration any danger attendant upon ingress or egress to and from said land arising out of any negligence on the part of either appellant company or the defendant or any members of defendant's family. The court refused so to instruct. No instructions given by the court referred to or advised the jury upon this proposition. In view of the evidence given on behalf of appellee we are of the opinion that the court erred in its refusal to so advise the jury. It is provided by clause 3, § 6, Act 1905 (Acts 1905, p. 62, c. 48), which deals with the assessment of damages: “Third. The damages to the residue of the land of such owner or owners to be caused by taking out the part sought to be appropriated.” The provision of section 6 of the statute is that it is not only the value of the land sought to be appropriated which is to be determined, but also the damages to the remainder of the particular tract of land caused by the part thereof appropriated, or in other words, the material inquiry is in regard to the actual depreciation of the market value of the land not taken caused by the carving out thereof of the portion actually appropriated. In determining the question of the depreciation of the market value of the residue of the land, the jury must be confined to the consideration of proper evidence. It will not be permitted to anticipate damages of any character which will not certainly, but only possibly, result in the future from the appropriation of the railroad. It is well affirmed by the authorities that damages which may in the future arise from the happening of some possible, but uncertain, event cannot be considered. These are too remote, speculative, and uncertain, and may be said to rest upon mere conjecture. Such uncertain or speculative matters are not proper to go to the jury as evidence relative to the depreciation of the market value of the remaining lands. Neither do they afford a proper basis for a witness to take into consideration in forming his opinion upon such depreciation. To this class of speculative, uncertain, and remote damages may be assigned the peril or danger to which the owner of the remaining land and the members of his family may be subjected or exposed in crossing the track, or tracks, of the railroad located upon the right of way condemned. Such peril or danger is said to rest upon, or be due to, the negligence of the company in the future operation of its cars or trains over the right of way in controversy. It cannot be assumed that the railroad company will, in the...