Shelby County Ry. Co. v. Crawford
| Decision Date | 01 July 1911 |
| Parties | SHELBY COUNTY RAILWAY COMPANY, Appellant, v. C. B. CRAWFORD et al.; W. A. DIMMITT, Respondent |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. -- Hon. Wm. H. Martin, Special Judge.
Affirmed.
E. M O'Bryen and V. L. Drain for appellant.
(1) The evidence offered by plaintiff as to its plan of construction of its railway over the land of defendant was proper. The court should have admitted same so that the jury could have the whole matter before them in arriving at the amount of damage sustained. Railroad v. Clark, 119 Mo. 357; 121 Mo. 195. (2) The tender of the crossing under the railway track of plaintiff was competent and its exclusion by the court was prejudicial to the rights of plaintiff. The refusal to permit such a tender to be made is contrary to the established rules of this and other states, and constitutes a vital error in this proceeding. Railroad v. Clark, 119 Mo. 357; also 121 Mo. 195; Railroad v. Knapp-Stout Co., 160 Mo. 396; Railroad v. State, 53 N. J L. 217; Carpenter v. Railroad, 24 N.J.Eq. 249; Packard v. Railroad, 54 N. J. L. 563; McGregor v. Gas Co., 21 A. 13 (Penn.) ; Hayes v Railroad, 54 Ill. 373; Railroad v. Railroad, 105 Ill. 388; Railroad v. Fletcher, 128 Ill. 628. (3) The amount assessed by the jury as damages is excessive. Railroad v. Walsh, 197 Mo. 392.
W. O. L. Jewett, J. D. Dale and Whitecotton & Wight for respondent.
(1) The only evidence offered by the appellant as to the crossing at the north line was the purported resolution of the board made long after the institution of this proceeding to condemn respondent's land. Under the pleading in the case, the right tendered by the resolution to the respondent could not be of any avail to him as it was too indefinite to be enforceable and furnished no light to the jury in determining the damages to respondent's farm by reason of the location of appellant's road. While it is true that a railway company will be allowed to show by competent evidence the advantages to the land by reason of any crossing that may be placed over the right of way, yet this will not avail the appellant when, as in his case, nothing had been done by appellant that would insure respondent any right but what is guaranteed him under the laws of the State. The testimony was too uncertain and indefinite to aid the jury in determining the damages sustained. What the law guaranteed could in no wise be assisted by such indefinite testimony. The only purpose would be to make the jury believe the respondent was getting some special reservation and thereby cause them to give him a smaller verdict than they otherwise would. (2) The testimony of the witness Mitchell was not excluded on the ground that it, appellant, could not show the plan of construction of the road, but on the ground that he was not competent to show that fact. The appellant at no time offered any competent testimony as to the crossing at the point appellant insists it was going to place one. There is no conflict in the action of the trial court and the case of Railroad v. Clark, 121 Mo. 195. (3) The appellant takes the same position as to the offer to the under crossing at the trestle. As to the wagon crossing, both being a part of the same offer and the action of the court applies alike to both, and the same objection made by appellant also applies.
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 two hundred and seventy dollars. 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 seven hundred and fifty dollars, 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.
I. 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.
II. 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. 199; Jackson v. Hardin, 83 Mo. 175; Copper & Iron Mfg. Co. v. Mfgrs. Co., 230 Mo. 59, 130 S.W. 288; State ex rel. v. Leland, 82 Mo. 260; Fitzgerald v. Barker, 96 Mo. 661, 10 S.W. 45; Berthold v. O'Hara, 121 Mo. 98; St. Louis v. Babcock, 156 Mo. 148, 56 S.W. 732; Seibert v. Hatcher, 205 Mo. 83, 102 S.W. 962; Ruschenberg v. Railroad, 161 Mo. 70; State v. Douglass, 81 Mo. 231; State v. Arnold, 206 Mo. 589, 105 S.W. 641; State v. Eisenhour, 132 Mo. 140, 33 S.W. 785.]
III. Objection being made, the trial court excluded a resolution of appellant's board of directors, adopted some eighteen months after this proceeding was instituted, which reads: "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 (Sec. 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. 339) 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 which it has no power to do directly, i. e. dictate the location of a farm crossing on respondent's land.
On the other hand, if the admission in evidence and consideration by the jury of the resolution would not have the effect of fixing the location of the crossing, the admission of the resolution would be useless and probably harmful.
The case of Railroad v. Clark, 121 Mo. 169, to which we are referred in this connection, is not in point, since in that case the offer made by the railway company was to construct two open crossings for the defendant's convenience, to neither of which would he have been entitled under the section of the statute relating to farm crossings even had that section been applicable to the situation there presented. That case decided the question whether the condemning company could "reserve to the landowner, without his consent, one or more open crossings and have the damages assessed on the basis that the landowner has and retains such an easement." In other words, whether the railroad could construct its road so that the landowner's means of access to the severed parts of his tract would be more convenient than the law absolutely required, and secure consideration of...
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