Omaha S. Ry. Co. v. Beeson

Citation36 Neb. 361,54 N.W. 557
PartiesOMAHA SOUTHERN RY. CO. v. BEESON.
Decision Date01 March 1893
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. A railroad company which has appropriated private property for right of way purposes, on appeal to the district court from an award of damage is not entitled to have a third party substituted and made a party in its stead on the ground that such person has agreed to indemnify it for money expended for right of way.

2. To entitle a third party to intervene in an action he must have some interest in the subject of the controversy. A mere contingent liability to answer over to the defendant, without any privity with the plaintiff, is not sufficient.

3. In superintending the impaneling of a jury some discretion is necessarily confided to the court, and the excusing of a juror for cause will not be held ground for reversal unless there appears to have been an abuse of discretion.

4. Where on a trial an inspection of the premises in question is proper, but impracticable or impossible, a photographic view thereof is admissible.

5. On trial of a condemnation proceeding it was not error to admit evidence tending to prove that the property in question (a tract of 21 acres, adjoining the city of Plattsmouth) was susceptible of subdivision into smaller lots, by reason of which it was more valuable, and that, in consequence of the construction of the railroad track, subdivision thereof was rendered impossible, whereby the value of the tract was greatly impaired.

6. In such case, proof of annoyance by smoke and ashes from passing trains is admissible, where the railroad track is constructed near the dwelling of the property owner, not as an independent element of damage, but as evidence tending to prove the value of the property after the construction of the track.

7. Where a witness volunteers testimony not responsive to any question, and which is immaterial under the issues, the complaining party should object thereto, or move to strike it out of the record. A new trial will not be allowed on account of such volunteer evidence when no objection is made to it at the time of the trial.

8. Where a public highway is vacated and abandoned as such by lawful authority, the land included therein reverts to the abutting proprietors, and cannot be appropriated by a railroad company for right of way without making compensation to such proprietors.

9. Evidence examined, and held to prove a mere expression of opinion of parties named in the record, and not an offer of compromise, and therefore admissible under the issues.

10. Instructions set out examined, and held not subject to criticism by the plaintiff in error.

Error to district court, Cass county; Chapman, Judge.

The Omaha Southern Railway Company appropriated private property of Allen Beeson, and from the award of the commissioners Beeson appealed to the district court, where he had judgment for $1,200, and, plaintiff's motion for a new trial being overruled, it brings error. Affirmed.A. N. Sullivan and Byron Clark, for plaintiff in error.

E. H. Wooley and Beeson & Root, for defendant in error.

POST, J.

This is a petition in error from Cass county, and brings up for review the judgment of the district court assessing the damage to defendant in error for the appropriation of certain property belonging to him, adjoining the city of Plattsmouth, by plaintiff in error, for right of way purposes, in the summer of 1890. The first error alleged is the refusal of the court to substitute for the railroad company, the defendant below, certain citizens of Plattsmouth, who had agreed to indemnify said company for all money expended for right of way through the property of defendant in error. There is no error in the ruling complained of. A sufficient answer to the argument of the plaintiff in error is that the proposed interveners are apparently satisfied with the ruling of the district court, the only party complaining being the railroad company. But the ruling was right, for the reason that the parties named had no direct interest in the subject of the controversy. There was no privity between them and the defendant in error, whose property had been appropriated. Their interest was a mere contingent liability to answer to the railroad company in case judgment was recovered against it in the condemnation proceeding. It was not an agreement made with the company for the benefit of the defendant in error, upon which an action could be maintained by the latter. There is no power conferred upon the court to dismiss a defendant against whom a cause of action is alleged, and substitute in his stead a stranger to the record, on the sole ground that the latter has agreed to satisfy the judgment of the court.

2. The second assignment is the sustaining of the challenge for cause by the defendant in error to Edward O'Neill, who was called as a juror. In our opinion, the juror was competent, and the challenge might properly have been overruled, but, so far as the record discloses, the jury selected was perfectly fair, and the ruling complained of was at most error without prejudice. In superintending the impaneling of the jury some discretion is necessarily confided to the trial judge, and the excusing of a juror by it for cause will not be held ground for reversal unless there appears to have been a clear abuse of discretion. Thomp. Trials, 88, and authorities cited. Richards v. State, (Neb.) 53 N. W. Rep. 1027. There is a wide distinction between the retention of a juror shown to be incompetent by reason of prejudice or the like and the improper excusing of one on the same grounds. In the one case the law presumes prejudice to the complaining party; while in the other, in the absence of proof, the presumption is that the jurors selected possess all of the statutory qualifications; hence the action of the court, if erroneous, is not prejudicial to the rights of either party.

3. Objection is next made to the admission in evidence of a photograph of the premises, taken before the construction of the road. There was no error in the admission of the evidence. The condition and value of the premises before the construction of the road were proper subjects for the jury to consider, and, where an inspection of the premises is proper, but impracticable or impossible, a photographic view of it is admissible. Thomp. Trials, 869.

4. Defendant in error was permitted to introduce evidence tending to prove that before the...

To continue reading

Request your trial
16 cases
  • Ranck v. City of Cedar Rapids
    • United States
    • Iowa Supreme Court
    • May 20, 1907
    ...221 (70 N.W. 162); Warden v. Philadelphia, 167 Pa. 523 (31 A. 928); R. & T. Co. v. Kerth, 130 Ind. 314 (30 N.E. 298); Railroad Co. v. Beeson, 36 Neb. 361 (54 N.W. 557); Railroad Co. v. Longworth, 30 Ohio St. II. It is claimed upon part of the appellant that appellee was permitted to testify......
  • Ranck v. City of Cedar Rapids
    • United States
    • Iowa Supreme Court
    • May 20, 1907
    ...221, 70 N. W. 162;Warden v. Philadelphia, 167 Pa. 523, 31 Atl. 928;R. & T. Co. v. Kerth, 130 Ind. 314, 30 N. E. 298; Railroad Co. v. Beeson, 36 Neb. 361, 54 N. W. 557; Railroad Co. v. Longworth, 30 Ohio St. 108. 2. It is claimed upon part of the appellant that appellee was permitted to test......
  • State v. Matheson
    • United States
    • Iowa Supreme Court
    • April 10, 1905
    ... ... And as a ... further illustration of the use of photographs as independent ... instruments of evidence, when properly identified, see, ... Omaha Southern R. Co. v. Beeson, 36 Neb. 361 (54 ... N.W. 557). It is apparently on the same principle that, in ... the comparison of signatures or ... ...
  • Faricy v. St. Paul Investment & Savings Society
    • United States
    • Minnesota Supreme Court
    • March 11, 1910
    ...of warranty given by one of the parties was not such interest in the subject-matter as to entitle to intervention. And see Omaha v. Beeson, 36 Neb. 361, 54 N.W. 557; Yetzer v. Young, 3 263, 52 N.W. 1054; Gale v. Frazier, 4 Dak. 196, 30 N.W. 138. It is to be noted, however, that in Horn v. V......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT