Packard v. Bergen Neck Ry. Co.

• Decision Date: 14 November 1892
• Citation: 54 N.J.L. 553,25 A. 506
• Parties: PACKARD v. BERGEN NECK RY. CO.
• Court: New Jersey Supreme Court

25 A. 506

54 N.J.L. 553

PACKARD

v. BERGEN NECK RY. CO.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1892.

(Syllabus by the Court.)

Error to supreme court.

The Bergen Neck Railroad Company, incorporated under the general railroad law, took proceedings to condemn certain lands in Hudson county, belonging to Ralph G. Packard, and adjoining New York bay. After the award, both parties appealed therefrom, and an issue was framed and tried in the Hudson circuit. After verdict and judgment thereon, Packard sued out a writ of error, and removed the cause to the supreme court. The judgment was there affirmed, (23 Atl. Rep. 722,) and Packard has, by writ of error, removed the judgment of affirmance into this court for review. Affirmed.

Charles W. Fuller and Joseph D. Bedle, for plaintiff in error.

Charles D. Thompson and Charles L. Corbin,for defendant in error.

MAGIE, J. The judgment now before us for review was founded upon an opinion which is reported in 23 Atl. Rep. 722. Of the numerous objections presented by the assignments of error but one was deemed of sufficient importance to require an expression of opinion. That objection was aimed at the instructions of the circuit judge to the jury in respect to the mode of determining the compensation to be awarded to the landowner. Those instructions were considered defective, because they allowed the jury to charge the landowner with any increase of value which his remaining lands (in common with other lands in the vicinity) had acquired by the construction of the railroad of defendant in error. But, as the case showed that there was no increase of value, and as the exception under which the objection was presented was, in the opinion of that court, too broad, it refused to disturb the judgment for an innocuous error improperly presented. The argument here has included not only the objection dealt with in the opinion of the supreme court, but other objections presented by the assignments of error. The bill of exceptions contains the evidence taken at the trial and the charge of the trial judge, appended to which, among other things, is the following: "Counsel for the defendant also prayed a bill of exceptions to that part of the charge of the court which permitted the jury to estimate damages in an aggregatesum, based upon the difference between the fair market value of the property owned by Mr. Packard, and affected by the condemnation as it stood on the 13th day of March, 1890, and what would have been the fair market value of the same property if on that day the railroad had been constructed across it upon an embankment not over six feet above high water, and that the difference between those two sums would make the defendant whole; which bill of exceptions is allowed, and signed and sealed accordingly, subject to the charge as above given in full. Jonathan Dixon, [l. s.] Just. Sup. Ct." It was this exception which was considered by the supreme court to be incapable of drawing into review on error the ruling objected to. The argument of the court was that the exception did not specify a particular error, but was directed at a number of errors included in the ruling. I find myself unable to agree to the conclusion arrived at below. It is undoubtedly true that a general exception to a whole charge, or even a part of a charge, containing distinct and separate propositions of law, will not be available. Oliver v. Phelps, 20 N. J. Law, 180, 21 N. J. Law, 597; Potts v. Clarke, 20 N. J. Law, 536; Associates v. Davison, 29 N. J. Law, 417; Noyes v. State, 41 N. J. Law, 418, 43 N. J. Law, 672; Engle v. State, 50 N. J. Law, 272,13 Atl. Rep. 604. So a general exception to the opinion of the judge on a trial without a jury will not draw in question, before a court of review, the different legal propositions contained therein. Kalbfleisch v. Oil Co., 43 N. J. Law, 259. The doctrine that a single exception interposed to several distinct and separate legal propositions will not avail exceptant is doubtless founded on the rule, which is inflexible, that the party who objects in the course of a trial must bring his objection to the mind of the trial judge, so that he may correct erroneous expressions, or explain what might otherwise mislead. Obviously such an exception, while logically asserting the error of each of the propositions of law involved, is considered unavailable, because the objection has not been leveled at a specific and distinct error, and the attention of the judge has not been called to the precise point of the objection. An exception to a charge containing various legal propositions must therefore single out and specify, one by one, the propositions objected to, and this may be done, as was said in Potts v. Clarke, and supra, "either by saying in the bill that the party excepts to so much of the charge as instructs the jury that the law is so and so; or by stating, by way of recital, the part of the charge excepted to; or by calling on the court to charge in a certain way, and, if the court refuse so to charge, then by excepting to such refusal." But a single proposition of law, laid down in a charge, may be objectionable upon several grounds, and, upon exception thereto, each of such grounds may be urged on review by writ of error. In some cases the exception taken in the course of the trial must show the grounds of the objection made to the ruling, and no other ground will be considered on review. Thus, where evidence is offered for a purpose expressed to the court, for which purpose it was incompetent, an exception to its rejection cannot be maintained in a court of review on the ground that the evidence was admissible for another purpose. Kailroad Co. v. Dailey, 37 N. J. Law, 526. But the applicability of evidence offered to the issue being tried is not obvious. It is therefore the duty of the party offering it to open to the court the nature of the evidence and its purpose, so as to show its applicability. It is upon such circumstances that the trial judge acts, and the bill of exceptions must therefore show those circumstances, that the actual ruling may be reviewed.

"When the evidence is closed, and the trial judge proceeds to lay down the legal propositions which he deems applicable, his attitude is different. His rulings on the law are made on the case before him. If he omits to charge a pertinent legal principle, he must be specially requested to charge, before exception can betaken to the omission. Mead v. State, 53 N. J. Law, 601, 23 Atl. Rep. 264. If he refused to charge as requested, the bill should show the request and refusal to charge on the subject at all, or what his charge on such request was. Conover v. Middletown, 42 N. J. Law, 382; Petre v. State, 35 N. J. Law, 64; Donnelly v. State, 26 N. J. Law, 508; Anderson v. Fitzgerald, 4 H. L. Cas. 484; McMahon v. Lennard, 6 H. L. Cas. 996. But when the trial judge lays down in his charge a single legal proposition, which a party deems improper and injurious, he may specifically except to that proposition. Such an exception is an averment that the proposition, in its application to the case, is erroneous in point of law, and it will be available although it does not state the arguments or grounds on which error is predicated. The trial judge may doubtless require the objecting party to make known the ground or grounds of objection, and to insert the same in the bill of exceptions. In such case, upon the principles already stated, the exceptant would be confined, in a court of review, to the specific grounds to which the attention of the judge had been thus called. But if the judge seals a general exception to a distinct legal proposition of his charge, upon review objections can be made upon any ground appearing in the bill of exceptions. This has already been settled in this court in the case of Crater v. Binninger, 33 N. J. Law, 513, where a general exception to instructions in respect to the measure of damages was considered, and the judgment below was reversed because those instructions were deemed to be erroneous upon a ground which, although appearing in the case, had not been brought to the attention of the trial judge.

My conclusion is that, if this exception is directed to a single proposition of the charge, it draws into review any objections thereto which may be urged on grounds appearing in the case. The question to be determined below was, what compensation should be paid to the landowner by the railroad company? The exception now in question was allowed to a part of the charge taken in connection with the whole charge which" is incorporated in the bill of exceptions. So read, the instruction complained of must have been understood by the jury to relate, not to damages eo nomine, but to the compensation of the landowner. This compensation might be determined, the jury were told, by estimating the fair market value of the property affected by the condemnation on the date of the commissioners' award, and deducting therefrom the fair market value thereof on the same day, if the railroad had then been built in the manner shown by the record and avowed by the counsel of the company at the trial. I have found it impossible to separate this proposition into two or more. In my judgment, it is a single and independent proposition, to which the landowner might except, and this general exception draws into review any objections grounded on matter appearing in the bill of exceptions. Objection to this instruction is first made on the ground that by law the jury are required to find (1) the value of the land taken by the railroad company, and (2) the damages resulting therefrom to the remainder of the tract out of which the land is taken. The railroad company was incorporated, and acquired the right to condemn land under the general railroad act. By the provisions of that law, commissioners are to be appointed, who are required to make "a just and equitable estimate or...