Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Crockett
| Decision Date | 24 November 1914 |
| Docket Number | 22,309 |
| Citation | 106 N.E. 875,182 Ind. 490 |
| Parties | The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Crockett |
| Court | Indiana Supreme Court |
From Wayne Circuit Court; Henry C. Fox, Judge.
Action by The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company against Simeon Crockett. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Walter G. Butler and John L. Rupe, for appellant.
William H. Kelly and Robbins & Robbins, for appellee.
This was a condemnation proceeding tried in the Wayne Circuit Court. Appellant filed a complaint against appellee in June 1911, to acquire by condemnation certain lots in the city of Cambridge City. Such proceedings were had in said cause that the court appointed three appraisers who made their report regularly, awarded damages to appellee in the sum of $ 900. Appellee filed exceptions to the report as to the amount of damages, alleging that damages were inadequate, insufficient and too small. The cause was tried by a jury and resulted in a verdict for appellee in the sum of $ 1,950. Appellee was the owner of a number of lots in blocks 17 and 20, of which lots Nos 20, 21, 22 and 23 in block 17 and lot 12 in block 20 were sought to be acquired by appellant, leaving lots 17, 18, 19 and 24 in block 17 and lots 13 and 14 in block 20 belonging to appellee.
The exceptions to the appraisers' award allege that (1) the appraisers are not disinterested freeholders of the county (2) that the amount of the award is too small and not sufficient to properly reward defendant (appellee) for the property taken and damages to the balance; (3) that appraisers refused and failed to take into consideration any elements of damages to the remainder of the real estate, described in the complaint, and being contiguous thereto; (4) that appraisers failed to consider as an element of damages injury by fire from the ordinary use of engines and resulting increase of insurance cost upon the remainder of the real estate contiguous to that sought to be acquired.
Appellant assigns as error in this court the refusal of the trial court to grant a new trial. The motion for a new trial avers the following alleged errors, viz., that the damages awarded are excessive; that the verdict of the jury is not sustained by sufficient evidence; that the verdict is contrary to law; error of law occurring at the trial in the admission and rejection of certain evidence; the giving of twenty-two instructions by the court of its own motion and refusing to give instructions Nos. 1 to 12 inclusive, tendered by plaintiff. The first error complained of is that the damages are excessive. This ground for a new trial applies to actions in tort only and not to proceedings of this nature. Norris v. Churchill (1898), 20 Ind.App. 668, 51 N.E. 104; American Quarries Co. v. Lay (1906), 37 Ind.App. 386, 391, 73 N.E. 608. The second cause for a new trial is that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The jury is the judge of the facts and as there was some evidence to support its verdict, this court will not disturb its finding on the mere weight of the evidence.
It is further contended that the court erred in the admission and rejection of certain evidence. On the trial of the cause the court permitted witnesses to testify to the value of the lots taken, and also to testify to the value of the remaining lots, before the appropriation and after the appropriation for the purpose of showing the damages suffered to the whole tract. Appellant now contends that the court erred in permitting the witnesses to testify to the value of lots 20 21, 22, 23 and 12, proposed to be taken and insists that the true measure of damages is the value of these lots before the appropriation and afterwards, or in other words, what was the value of the lots before the easement was established and afterwards. Appellant also contends that the court erred in allowing witnesses to testify as to the value of lots 17, 18 and 19 before the appropriation and afterwards for the purpose of fixing the damages to the lots remaining, claiming that the proper manner of making proof, was to show the value of the whole tract, which included several lots, before the taking and after the taking. Appellant is not in a position at this time to complain of this testimony either in the form or manner it was presented as to the damage to lots 20, 21, 22, 23 and 12 for the reason that it made no objection at the time of its introduction as to the manner of proving the damages to these lots, and this cause was tried by both parties to the action upon the theory that the damages to lots 20, 21, 22, 23 and 12 was the value of the lots taken. Appellant is in no better position to complain of the proof of damages to lots, 17, 18 and 19 for the reason that no objection was made to the questions propounded seeking to determine the damages to said lots, on the grounds that it was not the proper manner of proving the damages to these lots, but the only objection made by appellant was upon the theory that no damage should be allowed to the remaining lots at all. The objection interposed to all questions seeking to establish damages to lots 17, 18 and 19 was as follows: This objection was made more than a hundred times during the progress of the trial, and to every question asked during the trial of every witness who testified in relation to lots 17, 18 and 19, and no other objection was made to that testimony. Appellant cannot now insist that the proper manner of proving the damages to the lots in question was by...
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