Kansas City S. B. Ry. Co. v. McElroy

• Decision Date: 29 March 1901
• Citation: 161 Mo. 584,61 S.W. 871
• Parties: KANSAS CITY S. B. RY. CO. v. McELROY.
• Court: Missouri Supreme Court

61 S.W. 871

161 Mo. 584

KANSAS CITY S. B. RY. CO. v. McELROY.

Supreme Court of Missouri, Division No. 1.

March 29, 1901.

EMINENT DOMAIN — RAILROADS — RIGHT OF WAY — INSTRUCTIONS — REASSESSMENT OF DAMAGES — EVIDENCE — REPORT OF COMMISSIONERS — APPEAL — REVIEW — ARGUMENT OF COUNSEL — COMMENTS ON EVIDENCE.

1. In condemnation proceedings, by a railroad the company claimed that defendant's land not appropriated was benefited by switch connection. The court charged that the fact that other abutting railroad lands were afforded similar switch connection did not prevent the jury from considering such connections as of peculiar benefit to defendant's lands, and, if the jury believed, after allowing the value of the land taken, and the peculiar benefits to that remaining, that the value of the land not taken was as great with the railroad as the whole tract was without the railroad, they should allow no damages. Held, that it was not error to refuse to charge that, if the jury believed that defendant's land had been enhanced in value by the railroad so as to make switch connections possible, such increase was a benefit to be deducted from any damages otherwise sustained, and that the phrase "peculiar benefits" meant any increase in the value of defendant's land caused by the construction of the railroad; since the instructions refused were, in effect, a reiteration of those given.

2. In a proceeding before a jury to reassess damages awarded by commissioners for the condemnation of lands by a railroad company, where the amount awarded by the commissioners had been paid, and possession taken, it was not error to admit the report of the commissioners in evidence when the jury were instructed that they should not allow the amount awarded by the commissioners to influence their judgment as to the measure of damages, since it was necessary for the jury to know the amount of the commissioners' award in order that credit might be given plaintiff for the amount paid, and interest might be awarded defendant for the excess in case the damages found by the jury should exceed those awarded by the commissioners.

3. Where improper remarks of counsel to the jury are made the basis of an application for a new trial, but are not made a part of the record otherwise than by reference in affidavits filed to support the motion, which is opposed by counter affidavits by the counsel alleged to have made the improper statements, denying that he made them, the trial judge has had such superior opportunities for observation and knowledge concerning the disputed facts that the appellate court will consider itself bound by the decision of the trial court in denying the motion for a new trial.

Error to circuit court, Jackson county; J. H. Slover, Judge.

Condemnation proceeding by the Kansas City Suburban Belt Railway Company against Hugh L. McElroy. From a judgment awarding defendant damages, plaintiff brings error. Affirmed.

Lathrop, Morrow, Fox & Moore, for plaintiff in error. Holmes & Perry, for defendant in error.

ROBINSON, J.

This proceeding was instituted by plaintiff to condemn a strip of land 36 feet wide for its railroad through four lots in Kansas City owned by defendant. The condemnation commissioners appointed by the court filed their report assessing the sum of $8,000 as damages to the defendant, McElroy, the owner of the lots, to which report both the plaintiff and defendant duly filed exceptions. A trial by a jury was had in the circuit court in April, 1896, which again resulted in a verdict assessing defendant's damages at $8,000. To reverse the judgment entered upon that verdict, plaintiff has sued out a writ of error from this court.

Although numerous formal assignments of errors have been made, the brief filed by counsel for plaintiff in error shows that all have been abandoned except the two following: First, "the court erred in refusing to instruct that benefits to the property in controversy by reason of switch facilities were special benefits"; and, second, "the court erred in admitting in evidence the report of the condemnation commissioners, and in permitting counsel to comment upon it in his closing argument to the jury." Plaintiff's first assignment of error is based upon the action of the trial court in refusing to give instructions numbered 8 and 9 asked by it at the close of the testimony, a copy of which is here inserted: "No. 9. If the jury believes from the evidence that all or any portion of McElroy's lands between Main and Delaware streets have been enhanced in their market value by reason of abutting upon the railroad as built, so as to make it possible to run switch tracks from the railroad to different portions of his lands without crossing the lands of other people, then such enhancement in the market value is a peculiar benefit, which should be deducted from any damages which he might otherwise have sustained." "No. 8. The court instructs the jury that the phrase `peculiar benefits,' as used in these instructions, means any enhancement of or increase in the market value of McElroy's lands, or any part of them, by reason of the location, construction, and operation of the railroad over them as it is located, which is not shared by other lands in that vicinity which are not touched by the railroad." While the instructions, within and of themselves, announce no improper rule of law that would make them for that reason objectionable, several other instructions were given to the jury declaring the law announced therein in substantial terms; and these instructions, if given, would have been but the merest repetition of the same legal proposition, tending by their reiteration to confuse, rather than to assist, the jury in determining the real issues involved. The court, at plaintiff's instance, gave instructions 3, 4, 5, 7, and 11 below, which explain themselves, and make further comment upon them unnecessary: "(3) The court instructs the jury that the fact that other lands abutting on this railroad may be afforded the same or similar opportunities of switch connection as are afforded to the lands of McElroy does not in law prevent the jury from considering, in connection with all the other facts and circumstances in evidence, such opportunities for switch connections as of peculiar benefit to McElroy's lands, if in fact they increased the market value of his lands, or any part of them. (4) If the jury find from the evidence that the McElroy lands did not abut on Second street, and that a switch track could not be built to his lands from Second street without crossing lands belonging to some other person or persons, then the jury must consider that his said lands did not have any switch privileges from the railroad on Second street. (5) In determining whether or not the lands of McElroy not taken by the right of way can make switch connections with the railroad, the jury should not confine themselves to the present grade or elevation of the property, but should consider it at any other grade or elevation to which it is reasonably susceptible of being reduced." "(7) The court instructs the jury that if, after making due allowance for the value of the land taken, and after deducting therefrom the...