Johnson v. Chi., B. & N. R. Co.

Citation37 Minn. 519,35 N.W. 438
PartiesJOHNSON v CHICAGO, B. & N. R. CO.
Decision Date13 December 1887
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

Decision of the trial court, that improper remarks of counsel in summing up did not prejudice, sustained.

Where, from the evidence, it is apparent to the jury that maintaining and operating a railroad near buildings increases the risk, the jury may, though no witness has testified directly that it will, consider such risk, in estimating the damage to the land on which the buildings stand.

The opinions or estimates of witnesses, as to the amount of damage done to the land, not taken by taking part for railroad purposes, are not conclusive on the jury.

Appeal from district court, Winona county; START, Judge.

Wilson & Bowers, for Johnson, respondent.

William Gale, for Chicago, B. & N. R. Co., appellant.

GILFILLAN, C. J.

This was a proceeding to ascertain the damages to respondent's lot, and the buildings thereon, in the city of Winona, by taking a part of the street in front of and belonging to the lot to lay appellant's track along it. The jury had a view of the premises. Evidence was given on both sides of the value of the lot, and of the buildings. Respondent offered evidence of the cost of the buildings, which was excluded. His counsel, in arguing the case to the jury, referred to the description of the buildings, and their view of them, and proceeded: “I ask you to say whether they could be put there for $7,000.” The appellant's counsel excepted to this language, and it was repeated twice, each time being excepted to. This is claimed to have been misconduct on the part of respondent's counsel, and was one of the grounds of a motion for new trial, and the refusal of the court below to grant a new trial by reason of it is assigned as error.

The respondent's counsel may have gone beyond the legitimate line of argument of the case in referring to a matter as to which evidence had been excluded. In charging the jury, the court instructed them very emphatically that the cost of the buildings was not in issue, and they were to disregard any statement made in regard to it, except as the cost was involved in the market value. We cannot say that the remarks of counsel prejudiced the appellant before the jury, and the court below, with much better opportunity than we have, has decided, in refusing the new trial, that they did not prejudice. The record would have to show a decided probability of prejudice to justify us in reversing that decision. The case, as presented, does not call on us to do so.

One instruction to the jury was: “The increased risk of fire, if any, to the buildings on the premises, is an element of damages for you to consider and determine, so far as it affects the value of the property with the railroad in front of it.” It is not denied that in such cases increased risk of fire to buildings is a proper element of damages. The objection was that the testimony, as to increased risk, was that of one witness, engaged in insurance, who, on being asked if laying the track and the use of it in front of the premises would increase the risk of fire, answered, “I don't know that it would;” and that, therefore, there was no...

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32 cases
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    • Utah Supreme Court
    • April 18, 1912
    ... ... 598, 20 P. 197; St. Louis Ry. Co ... v. Oliver, 87 P. 423; Beckman v. Railway, 122 ... N.W. 994; Railway v. Bates, 68 N.W. 342; Johnson ... v. Railway, 35 N.W. 438; Railway Co. v. Columbia Synod, ... 119 P. 60.) ... Market ... value, after a witness has stated the same, ... ...
  • Appeal of Cohen
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    • Connecticut Supreme Court
    • June 20, 1933
    ... ... witness fails to include relevant circumstances affecting ... value, the trier may conclude that his estimate is too low ... Johnson v. Chicago, B. & N. R. Co., 37 Minn. 519, ... 521, 35 N.W. 438. Such qualifications ... [166 A. 751] ... as the expert witness called by the ... ...
  • Chicago, L. & E. Ry. Co. v. Wysor Land Co.
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    ...Ed. 937;Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028;City of Kansas v. Butterfield, 89 Mo. 646, 1 S. W. 831;Johnson v. Chicago, etc., R. Co., 37 Minn. 519, 521, 35 N. W. 438;McReynolds v. Burlington, etc., R. Co., 106 Ill. 152, 155, 156;Louisville, etc., R. Co. v. Mason, 79 Tenn. 116, 120......
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    ... ... 316. See footnote No. 17, on page 1114 of volume ... 2 of Lewis on Eminent Domain; Cyc. vol. 15, p. 752, footnote ... No. 31; Nels Johnson v. Chicago, Burlington & Northern ... Railroad Co., 37 Minn. 519, 35 N.W. 438; Curtis v ... St. Paul S. & T. F. R. Co., 20 Minn. 28 (Gil. 19); ... ...
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