Omaha Belt Ry. Co. v. McDermott

• Citation: 25 Neb. 714,41 N.W. 648
• Parties: OMAHA BELT RY. CO. v. MCDERMOTT.
• Decision Date: 06 February 1889
• Court: Supreme Court of Nebraska

25 Neb. 714

41 N.W. 648

OMAHA BELT RY. CO.

v.MCDERMOTT.

Supreme Court of Nebraska.

Feb. 6, 1889.

Syllabus by the Court.

1. Error cannot be successfully assigned upon the admission of evidence by a trial court, which was admitted by the consent of the complaining party, no objection having been made thereto.

2. The rule for estimating damages to real estate, resulting from the construction of a railroad contiguous or adjacent thereto, is the difference in the value of the real estate before and after the construction of the railroad, uninfluenced by the increase or depreciation of the property values generally in the neighborhood.

3. Instructions asked by plaintiff in error and refused by the court examined, and held to have been properly refused.

Error to district court, Douglas county; NEVILLE, Judge.George E. Pritchett, for plaintiff in error.

J. J. O'Connor and C. A. Baldwin, for defendant in error.

REESE, C. J.

This action was commenced in the district court of Douglas county, and was for damages resulting to real estate from the construction of the Omaha Belt Railway along the streets adjacent to and abutting upon the property alleged to have been damaged. The real estate described in the petition as belonging to defendant in error is lots 1 and 2 in block 200 1/2 in the city of Omaha, being 132 feet front on Fifteenth street, and 132 feet on Izard street. A trial to a jury resulted in a verdict in favor of defendant in error for the sum of $3,000, upon which judgment was rendered. To reverse this judgment this proceeding in error has been instituted.

The first contention on the part of plaintiff in error in its brief is that the verdict is against the evidence, and not supported thereby. It appears from the record that the jury were taken, under the direction of the court, by one of its officers, to the ground, and an examination of the property was made by them, prior to the introduction of any testimony. This fact, together with the further consideration that quite an array of witnesses were called on the part of defendant in error, who testified to the depreciation of the value of the property by reason of the construction of plaintiff's road, renders it practically beyond the power of this court to interfere upon the ground alleged. So far as the extent of the damage or depreciation of defendant's property was concerned, there was a direct conflict between the witnesses. It may be said that the witnesses called for plaintiff in error were those who, from experience and knowledge in the matter of real estate and real-estate values, necessarily were entitled to belief, while those presented by defendant in error were, many of them, citizens in her immediate neighborhood, and not as fully prepared to testify and give intelligent opinions as to value as those called by plaintiff in error. Yet the jury were the sole judges of the weight of the evidence. The witnesses were all competent to testify. The jury, after having seen the property, would no doubt be as competent to judge of their credibility as to the particular matters in controversy as this court would be, even though it were within its province to retry questions of fact, which it is not.

It is next contended that the case was tried upon an erroneous theory, in permitting the opinions of witnesses as to the amount of damages. This is to some extent true, as we find from an examination of the testimony that witnesses were permitted to testify as to the percentage of depreciation of the value of the property; but for this the court was, perhaps, not to blame. And it is for the correction of the errors of the trial court alone that this court sits in the capacity of a court of errors. No objection was made upon the part of plaintiff in error to the method adopted by defendant in error in ascertaining the damages to the property in question. For aught that appears from the record, (and indeed, we may say, as affirmatively shown thereby,) plaintiff in error was entirely satisfied with the method adopted by defendant in error, and it cannot now complain. As has been held in similar cases, the estimate of damages must be made by the jury, while opinions as to value may be given by witnesses, and therefore the plaintiff should call witnesses to prove the value of the property before and after the construction of the road, excluding general appreciation or depreciation in values, and the jury can then make the proper computation. But as this question was not presented to the trial court, it cannot be reviewed here.

It is next insisted that the court erred in not permitting the plaintiff in error to prove what was the market value of the property after the construction of the road. It appears that the road was constructed during the latter part of the year 1885. The trial was had on the 20th day of June, 1887. The questions propounded to the witnesses by plaintiff in error were as to the value of the property at the time of the trial. Upon objection being made, the proposed testimony was excluded. We quote the following from the bill of exceptions. “ Question. State, if you know, what is the present market value of these two lots?” Objected to as...