Postal Telegraph-Cable Co. of Washington v. Northern Pac. Ry. Co.

• Decision Date: 09 March 1914
• Docket Number: 2268.
• Citation: Postal Telegraph-Cable Co. of Washington v. Northern Pac. Ry. Co., 211 F. 824 (9th Cir. 1914)
• Parties: POSTAL TELEGRAPH-CABLE CO. OF WASH. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F. 824

POSTAL TELEGRAPH-CABLE CO. OF WASH. v. NORTHERN PAC. RY. CO.

No. 2268.

United States Court of Appeals, Ninth Circuit.

March 9, 1914

The plaintiff in error was the petitioner in the court below in condemnation proceedings to establish its right to locate maintain, and operate a telegraph line upon and along the right of way of the defendant in error, under the authority of the statutes of Washington, which gives to telegraph companies the right of eminent domain and require railroad companies to allow telegraph and telephone companies to construct and maintain telegraph lines on and along their rights of way. In the petition it was alleged that the poles and wires would be so constructed and maintained as not to interfere with the ordinary use or travel of the railroad company, and the prayer of the petition was that a jury be impaneled to ascertain and determine the compensation to be paid to the defendant, irrespective of any benefit to be derived by it from the said telegraph line. Upon the evidence submitted before the jury a verdict was returned for the defendant in the sum of $15,000. Thereupon judgment was entered.

Hughes McMicken, Dovell & Ramsey, of Seattle, Wash., for plaintiff in error.

C. H. Winders, of Seattle, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to the ruling of the trial court in excluding certain testimony offered in rebuttal by the plaintiff in error. The testimony was excluded on the ground that it was part of the petitioner's case in chief, and not proper rebuttal testimony. It is not disputed that the law of Washington places upon the petitioner in a condemnation suit, such as this, the burden of showing the reasonable value of the easement sought to be appropriated, and the damage or absence of damage to the remainder so as to present the evidence of the compensation that should be paid to the defendant. The law of that state does not require the defendant in such a suit to file an answer, and he may show the value of the land taken and the damages he will sustain without having presented in any pleading the facts on which he relies. State ex rel. Ami Co. v. Superior Court, 42 Wash. 675, 85 P. 669; Tacoma v. Wetherby, 57 Wash. 295, 106 P. 903. In pursuance of that law, the defendant herein filed no answer to the petition. Assuming the burden thus imposed upon it by the statute, the plaintiff in error called witnesses to answer the question:

'What damage or diminution in the value of the use of this right of way by this railway company, or its successors in interest, in the use and operation of the right of way for any railway purpose, would be occasioned or is occasioned by the appropriation of the right to construct and maintain a telegraph line as proposed in this petition?'

The witnesses answered that the damages would be merely nominal. The two principal witnesses were cross-examined by the defendant in error, and were interrogated as to the additional expense which the telegraph poles and line would add to the expense of clearing the right of way of the railroad company of brush. One of them testified that he could not answer as he had not taken into consideration the question of such added expense. The other testified on cross-examination that the presence of telegraph poles would not add any appreciable amount to the expense of keeping the right of way clear of brush. By the cross-examination of these witnesses the plaintiff in error was distinctly advised of the nature of the defendant's claim for damage; as much so as if there had been an answer setting up such elements of damage to the right of way. The plaintiff in error had the opportunity then to offer testimony in chief to show, if it could, that the presence of the telegraph poles on the right of way and the wires attached thereto would not add to the expense of keeping the right of way clear of brush, and such testimony was a part of its case in chief and was as available to it then as it was after the defendant in error rested. The plaintiff in error was not taken by surprise, therefore, when the defendant in error offered testimony tending to prove that the presence of poles and wires on the right of way appreciably enhanced the cost of clearing and keeping clear the right of way. When, after the defendant in error had closed its testimony and rested, the plaintiff in error again approached the subject of the expense of clearing the right of way of brush, it was offering evidence which should have been offered in chief, and there was no abuse of discretion in the ruling of the court that the evidence so offered was part of the case of the plaintiff in error in the first instance, and was not proper rebuttal. The rule is thus expressed in 38 Cyc. 1356:

'After he has rested, neither party can, as a matter of right, introduce any further testimony which may properly be considered testimony in chief. The strict rule is that he must try his case out when he commences, and cannot divide his evidence and give part in chief and part in rebuttal. Any relaxation of this rule is but an appeal to the sound discretion of the court.'

See, also, Marande v. Texas & P. Ry., 124 F. 42, 46, 59 C.C.A. 562; Mitchell v. City of Boston, 215 Mass. 150, 102 N.E. 127; Stewart v. Smith, 111 Ind. 526, 13 N.E. 48.

Was there error in giving or refusing instructions? The whole case before the court and jury resolved itself into the inquiry: How much injury would the railroad company sustain, if any, by reason of the presence upon its right of way of the proposed telegraph poles and wires? It is said that the court erred in refusing to instruct the jury that the statutes of the state of Washington do not impose any express duty upon a railroad company to cut or burn the brush growing upon its right of way, or to keep the same free from grass, weeds, brush, or trees. It was not error to refuse that instruction and this for two reasons, either of which is sufficient. In the first place, it was entirely immaterial whether or not there was such a statutory requirement. It was not disputed that irrespective of any such statute the railroad company was required to keep its right of way clear of brush. It was shown by the undisputed testimony that on the right of way of the defendant in error brush will grow from six to ten feet in a single season, and that upon portions thereof it was necessary to clear the brush every year. The testimony presented to show such necessity was pertinent to the issues and was received without objection. The necessity was one not created by statute, but by the very nature of the situation. In the second place, it was not error to refuse such instruction for the reason that the plaintiff in error took no exception to the charge in which the court instructed the jury as follows:

'You are instructed that the law requires a railway company to use reasonable diligence in keeping its right of way cleared from inflammable material, and that, where it fails to do so and damage results therefrom, the railway company is liable; and if you should find from the evidence that it is necessary or desirable for the railway company, in order to prevent the setting out and spreading of fires, in the operation of its trains, or for any other necessary or appropriate railway use or purpose, the expense thereof should be chargeable to the petitioner here in this proceeding; provided, however, that the necessary expense thereof would in any material or substantial degree be increased by reason of the construction and maintenance of the proposed telegraph line upon said right of way, such additional expense, if any, may be considered by you in arriving at your verdict.'

This instruction was accepted as correctly stating the law applicable to the issues. It expressed the law of Washington as it is found in the opinion of the court in Fireman's Fund Ins. Co. v. Northern Pacific Ry., 46 Wash. 635, 91 P. 13.

Nor was there error in the refusal of the court to instruct the jury as requested by the plaintiff in error, that the railway company would owe no duty to the telegraph company to cut or remove such brush or undergrowth immediately surrounding the poles of the latter company unless the jury believed from the evidence that the cutting of such brush or undergrowth would be necessary for the safe and proper operation of the railway trains and business or to prevent the spread of fires. There was nothing in the evidence to which this requested instruction was applicable. No question was, or could have been, at any time presented of any duty of the railway company to the telegraph company to cut or remove brush, and to have given the requested instruction would have been to divert the attention of the jury from the real question in issue. It may be conceded, as argued, that the obligation imposed upon a railroad company to keep its right of way free of brush or other material likely to cause damage by fire is not to be taxed against one who in no way adds to that burden, but that proposition was wholly aside from the issues and the evidence in the case. But a single question was presented for decision, and that was whether the presence of the telegraph poles and wires would add to the burden of the duty imposed upon the railroad company. If it did add to that burden, clearly it was proper that the expense of bearing the added burden should be assessed against the telegraph company, which for its own benefit caused it. It was to the question of this added burden that all the testimony was directed, and it was because the jury found there was such an added burden that they returned their verdict against the...