Shelby County Ry. Co. v. Crawford

• Decision Date: 01 July 1911
• Citation: 235 Mo. 489,139 S.W. 115
• Parties: SHELBY COUNTY RY. CO. v. CRAWFORD et al.
• Court: Missouri Supreme Court

139 S.W. 115

235 Mo. 489

SHELBY COUNTY RY. CO. v. CRAWFORD et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. EMINENT DOMAIN (§ 262)—CONDEMNATION PROCEEDINGS—AWARD—REVIEW.

An award of damages in condemnation proceedings based on conflicting evidence will not be disturbed as excessive by the Supreme Court.

2. EMINENT DOMAIN (§ 255)—RULINGS ON EVIDENCE—OFFER OF PROOF—NECESSITY.

Where, in condemnation of a right of way, the court sustained an objection to a question asked by petitioner calling for the plan of construction of the railroad with reference to a crossing at a particular place, and the question did not disclose on whose land the crossing referred to was to be constructed, and no offer of proof was made, the ruling could not be reviewed.

3. EMINENT DOMAIN (§ 201)—RAILROADS— CROSSINGS—EVIDENCE.

Where, in proceedings to condemn a right of way, it was conceded that the height of a railroad embankment on all respondent's land was such that an overhead crossing ordered by a resolution of the railroad's directors was an ordinary grade crossing to which respondent was entitled by Rev. St. 1909, § 3145, and not a viaduct, the court did not err in refusing to permit a directors' order that an overhead crossing be placed on respondent's land at a particular point to be introduced in evidence.

4. EMINENT DOMAIN (§ 254)—EVIDENCE—EXCLUSION —RIGHT TO ALLEGE ERROR.

In proceedings to condemn a right of way, petitioner offered a written tender to respondent of the use of the space underneath a trestle on the north side of a creek for a crossing, and also a wagon crossing over the road on the north side of the land where the road was then located. On objection the tender was excluded because the offer was indefinite, and did not show who was to maintain the crossing, or that it would be permanent, etc., the court offering to permit petitioner to amend the petition and offer so as to cover the objections. Nothing further was done, except that petitioner requested an instruction that the jury in passing on the question of damages should not consider the question of crossings on respondent's land, but should assess the damages, if any, on the assumption that necessary and proper crossings would be provided. This instruction was not given, but the court gave one in lieu thereof. Held, that petitioner by such instruction eliminated the tender, and that its exclusion was not reviewable error.

Appeal from Circuit Court, Randolph County; Wm. H. Martin, Special Judge.

Condemnation proceedings by the Shelby County Railway Company against C. B. Crawford and others. From a judgment awarding damages to respondent W. A. Dimmitt, who excepted to an award made by commissioners, petitioner appeals. Affirmed.

E. M. O'Bryen and V. L. Drain, for appellant. W. O. L. Jewett, J. D. Dale, and Whitecotton & Wright, for respondent.

BLAIR, C.

This is a proceeding instituted in the circuit court of Shelby county by the Shelby County Railway Company to condemn a right of way across certain lands. The commissioners awarded damages to respondent in the sum of $270. The railway company paid the money into court, and proceeded with the construction of its road. Respondent filed exceptions, and, on change of venue to Randolph county, obtained judgment for $750, from which this appeal is prosecuted.

The errors assigned relate to the admission and exclusion of evidence, the exclusion of an offer to permit the use of certain crossings by respondent, the giving and refusal of instructions, and the alleged excessiveness of the damages allowed.

1. It is urged that the damages assessed are excessive. The familiar rule that the verdict of a jury on conflicting evidence will not be disturbed by this court is as applicable to this case as any other. City of St. Joseph v. Crowther, 142 Mo. 155, 43 S. W. 786. The testimony of respondent and his witnesses was amply sufficient, if believed, to support the verdict.

2. The witness Mitchell was asked by appellant's counsel what was the "plan of construction of the railroad with reference to a crossing at the north end here." The court sustained an objection, and, without indicating what answer was expected or making any offer of proof, counsel proceeded with the examination of the witness on other subjects. The question does not disclose, as it appears in the record, on whose land the crossing referred to was to be constructed. Under such circumstances the ruling of the trial court on the objection cannot be reviewed. Aull Savings Bank v. Aull, 80 Mo., loc. cit. 202; Jackson v. Hardin, 83 Mo., loc. cit. 187; Copper & Iron Mfg. Co. v. Mfgrs. Co., 230 Mo., loc. cit. 77, 130 S. W. 288; State ex rel. Farwell v. Leland, 82 Mo. 260; Fitzgerald v. Barker, 96 Mo., loc. cit. 664, 10 S. W. 45, 9 Am. St. Rep. 375; Berthold v. O'Hara, 121 Mo., loc. cit. 98, 25 S. W. 845; St. Louis v. Babcock, 156 Mo., loc. cit. 152, 56 S. W. 731; Seibert v. Hatcher, 205 Mo., loc. cit. 83, 102 S. W. 962; Ruschenberg v. Railroad Co., 161 Mo., loc. cit. 81, 61 S. W. 626; State v. Douglass, 81 Mo. 231; State v. Arnold, 206 Mo., loc. cit. 597, 105 S. W. 641; State v. Eisenhour, 132 Mo., loc. cit. 146, 33 S. W. 785.

3. Objection being made, the trial court excluded a resolution of appellant's board of directors, adopted some 18 months after this proceeding was instituted, which reads as follows: "It was also ordered that an overhead crossing be placed on W. A. Dimmitt's land at a point near where he joins V. L. Drain's land south of Shelbyville." It is urged that this resolution should have been admitted in order that the jury might have before them in assessing the damages the location of the farm crossing which appellant intended to construct for respondent's convenience. The briefs of counsel seem to concede, and the height of the railway embankment (seven to nine feet) on all of respondent's land demonstrates, that the crossing contemplated by the resolution was an ordinary grade crossing, and not a viaduct. The latter would have necessitated the use for approaches of land not sought to be condemned. The statute (section 3145, R. S. 1909) entitled respondent, under the circumstances of this case, to "all necessary farm crossings" which might be required to connect conveniently the severed parts of his farm. Neither appellant nor respondent is by the statute given the right to dictate the location of such crossings, and, if they cannot agree, "the court must exercise its best judgment and decide the controversy with due regard to the rights of both" (Powell v. Railroad, 215 Mo., loc. cit. 358, 114 S. W. 1072), and the safety of the traveling public. If the location by the resolution offered would have become fixed by the admission of the resolution in evidence and the assessment of damages with it before the jury, then, if appellant could force its admission, it could do indirectly that...