Kay v. Glade Creek & R. R. Co.

• Decision Date: 24 March 1900
• Court: West Virginia Supreme Court
• Parties: Kay v. Glade Creek & R. R. Co.

47 W.Va. 467

Kay

v.Glade Creek & R. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1900.

Decided March 24, 1900.

1. Stenographic Notes Exceptions Considered.

Where a stenographic report of evidence is made part of the certificate of evidence upon a motion for a new trial, and it shows objections to questions or evidence, and rulings of: the court thereon, and that-such rulings were excepted to, and the particular question or evidence complained of is specified distinctly in the motion for a new trial, or in an assignment of error, "or in brief of* counsel, so that the appellate court can readily and safely find the particular question or evidence to which the exception relates, the appellate court will consider the matter excepted to, though there is no formal bill of exceptions thereto; but such matter will not be considered without such specification, even though such report of evidence notes such objection and exception, (p. 470).

2. Landowner Railroad Damage.

' In ascertaining damages to a landowner, flowing to the residue of his tract, from the construction of' a. railroad, danger to buildings, fences, forests, and the like, from fire emanating from locomotives, may be considered as an element of damages, so far as such danger lessens the value of such residue; but such danger must-be real, imminent, and reasonably to be apprehended, not remote or merely possible. The question is, is the residue depreciated in value from that cause, and how much? (pp. 474-475).

8. Trial Evidence Mat cried Exception.

Where there is an exception to the ruling of the trial court, for allowing or refusing to allow a question to be answered by a witness, and it does not appear what the answer was, or what was expected to be proved by him, an appellate court will not consider the exception, as it cannot determine the relevancy, admissibility, or value of the answer or expected answer. If the question alone show that its answer must be material, and it is refused, it is different, if an answer is stricken out, it must appear, else:.t will not be considered, (p. 478).

4. Damages Evidence Witness Opinion.

Opinions of witnesses not personally acquainted with land appropriated for railroad purposes are not admissible as to the value of the land actually taken, or damages to the residue, it not being a question of expert evidence; but a person so acquainted ami conversant with the land may state the circumstances ami respects in which the laud is prejudiced or benefited by the railroad, and may then express his opinion as to the value of the land after completion of the road as compared with what if was before, (p. 479).

Error to circuit Court, Raleigh County.

Action by Elizabeth Kay against the Glade Creek and Raleigh Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

McGinnis & McGinnts and John W. McCreery, for plaintiff in error.

A. P. Farley and J. E. Summerfield, for defendant in error.

Brannon, Judge:

Elizabeth Kay brought an action of trespass-on the case in the circuit court of Raleigh County against the Glade Creek and Raleigh Railroad Company to recover damages sustained by her from the taking cf land of hers and using it for the construction of its railroad, and also for damage done to her by fire claimed to have been started from sparks emitted from a locomotive on said railroad, burning some fencing and injuring timber. A jury found a verdict for one thousand dollars, for which the court rendered judgment, and the company has brought the case to this Court.

A question important in daily practice arises in this case, which seems, under our decisions, to be in a state more or less chaotic and unsettled. The defendant moved the court to set aside the verdict, and, the court having refused to do so, certified all the evidence as taken down by the stenographer; incorporating it in a bill of exceptions, duly noted on the record. Thus, all this evidence is made part °f the record by that bill of exceptions. The defendant complains that certain questions propounded by it were ruled out and not allowed to be answered, and that certain questions asked by plaintiff, and objected to by the defendant company, were allowed to be answered. These questions were not made the subject of bills of exception, according to the usual practice, but the stenographic report shows the matter in this wise: When objection to a question was sustained, the report says: "Objection. Sustained. Exception." When objection to a question was not sustained, the report merely says: "Objection. Overruled. Exception." Does this give the excepting parties the benefit of the exception? The questions appear from this report; the objection appears; the exception appears; all the things appear that would appear from a formal bill of exceptions, except onlv particularity or specification of the particular questions or answers. To get them the Court has to grope though the whole report of the evidence, consisting of hundreds of pages very frequently, in this case one hundred and sixty-four printed pages, consisting of hundreds of questions and answers; and very often a printed record contains several times that much. Can an appellate court be asked to winnow out from the great mass of questions and answers the particular ones constituting the ground of complaint? In the case of instructions or other documents admitted or rejected, the task is not difficult, and the danger of mistake small; but in the case of multitudinous questions it is both difficult and dangerous, from the liablity to miss the point. The Virginia Court of Appeals, in Railroad Co. v. Shott, 02 Va. 34 (22 S. E. 811) says: "A general bill of exceptions, certifying all of the evidence, and noting at intervals that objection was made to questions propounded, and the objection overruled, and exception taken, is not a sufficient exception to the ruling of the court on such questions. In order to have the bene lit of an exception to the ruling on a motion to reject or admit evidence, there must be a bill of exceptions, signed by the judge, clearly and distinctly pointing out each erroneous ruling complained of; other wise, the objection will be regarded as abandoned. And while there may be several exceptions saved by the same bill, yet each must set forth clearly and distinctly the ground of objection relied on, so that there may be no confusion amongst them.', So, in* Railroad Co. v. Ampcy, 93 Va. 108 (25 S E. 226), where there was a stenographic report, the court held that "objections to the admission or exclusion of evidence, or to giving or refusing instructions, should be brought directly to the attention of the trial court, and, if overruled, a proper bill of exception should be taken, specifically and definitely setting forth the allegation of error, and so much of the evidence as is necessary to render clear the propriety or impropriety of the ruling of the court; otherwise, the exception, though noted at the time, will be treated by the appellate court as waived or abandoned." Under those decisions, we could not consider the points complained of in this case. They state the rule of practice always observed before the advent of stenographic official reports of evidence under statutes such as that found in the Code of 1891 (page 1062). That statute makes such report "official and the best authority in any matter of dispute, and a copy of the same, made as hereinafter provided, shall be used by the parties-to the cause in any further proceedings, wherein the use of the same may be required." In Cummings v. Armstrong, 34 W. Va. 1, (11 S. E. 742), this statute, and the virtue of stenographic reports under it, are discussed by Judge Lucas quite elaborately and well. His view made that report, per se, by force of the statute alone, part of the record. Judge Snyder and myself could not go so far as to hold the report a part of the record, and of absolute verity as such, merely by force of the statute; but we did concede that when that report was made a part of a bill of exceptions by the Judge, and thus signally verified by him as correct, such report of evidence became part of the record, and entitled to credit as such. That has been done in this case. I again ask, can the exceptions to the admission and exclusion of evidence, merely noted in short in the stenographic report, in the manner above indicated, be considered by the Supreme Court, in the absence of a bill of exceptions, under the usual practice, specifically designating the particular evidence complained of as erroneously admitted or excluded? I repeat that the objection, ruling, and exception are part of the record; and where the answer is given, it is part of the record, also. Thus, the only trouble is want of specification, in the great volume of evidence, of the particular questions allowed or refused to be answered. Let us see what light our past decisions may cast upon the questions: In State v. Harr; 38 W. Va.58 (17 S. E. 794), we find that section 4 of the syllabus says that: "To make available in the Appellate Coin t an objection taken during the trial to the admission of evidence, the point must be made, and properly saved by some bill of exceptions. It is not enough merely to note the objection and exception in the certificate of evidence." There is, however, nothing in the opinion touching it. The same holding-is found in the syllabus in Poling v. Railroad Co,., 38 W. Va. 645 (18 S. E. 782), 24 L. R. A. 215; but this holding is somewhat qualified by the statement on page 658, 38 W. Va., (page 786, 18 S. E.), and page 222, 24 L. R. A., that the point "must in some way be so set out as to be capable of being easily found and identified." So, according to that case, if the particular point can be identified, safely picked out of the mass, it is allowable to do so, and save the excepting party the benefit of his point, as was intended by the circuit court, and by the party...