Peoria v. Sawyer
| Decision Date | 31 January 1874 |
| Citation | 1874 WL 8674,71 Ill. 361 |
| Parties | PEORIA, ATLANTA AND DECATUR RAILROAD COMPANYv.JOHN SAWYER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Tazewell county; the Hon. DAVID KYES, Judge, presiding.
Messrs. INGERSOLL & PUTERBAUGH, for the appellant.
Messrs. WHITNEY & FOSTER, for the appellee.
This was a petition, filed in the county court of Tazewell county, by appellant, to condemn the lands of appellee for right of way.
The cause was heard before a jury, and a verdict returned in favor of appellee for $1105. A motion was made by appellant for a new trial, which the court overruled, and rendered judgment upon the verdict.
The land described in the petition was the west half of the north-east quarter of section 12, township 24 north, range 3 west. It appears, from the evidence, that appellee owned thirty acres which joins this tract on the south, and constituted a part of his farm.
Appellee, on the trial, introduced some evidence in regard to damages by him sustained to the thirty-acre tract, by the location of appellant's road over and across the other tract. Appellant objected to the admission of this evidence, and the decision of the court in admitting it to go to the jury is now urged as a ground for the reversal of the judgment.
While it is true, the damages to the thirty-acre tract were not in issue on the trial in the county court, this tract not having been named in the petition, and appellee not having filed a cross-petition to include it with the other land, yet it does not appear that appellant was in the least injured by the evidence, for the reason that it was clearly proven by a number of witnesses, and contradicted by none, that the damage to the tract described in the petition was at least $1200, while the jury returned a verdict for only $1105.
The admission of improper evidence can not be regarded as a cause for reversal, unless the party against whom it was admitted has been injured or prejudiced by it.
In addition to this, it appears the court, in effect, excluded the consideration of that evidence from the jury, by the sixth instruction given at the request of appellant. By this instruction, the jury were, in substance, directed not to assess damages to any other property except that described in the petition, over and through which it is proposed to construct the railroad. This instruction, no doubt, accounts for the fact that the verdict of the jury, under the evidence, was not larger.
The next point relied upon by appellant is, the giving of instructions one, two and three, by the court, for appellee, against the objection of appellant. They are as follows:
“1. The court instructs the jury, on the part of the defendant, that the said defendant, Sawyer, is entitled to compensation for land taken for right of way of petitioner over and across the lands of said defendant, and the jury should fix the amount of such compensation at what they believe, from the evidence, to be a fair value for the land so taken. "2. The court further instructs the jury that if they believe, from the evidence, that the defendant is entitled to damages by reason of the construction and use of said petitioner's railway over and across defendant's lands, then the jury should so find, and, in ascertaining the amount of such damages, should deduct therefrom such amount, if any, as the jury believe, from the evidence, the said defendant will be benefited by reason of the construction and use of said railway over and across said land of said defendant.
3. The court further instructs the jury that the form of their verdict in this case may be as follows: We, the jury, find for the defendant, and...
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