Union Pac. R. Co. v. Stanwood
Decision Date | 04 June 1902 |
Citation | 71 Neb. 150,91 N.W. 191 |
Parties | UNION PAC. R. CO. v. STANWOOD. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Baxter, Judge.
“Not to be officially reported.”
Action by Sarah N. Stanwood against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Duffie, C., dissenting in part.W. R. Kelly, John N. Baldwin, and Edson Rich, for plaintiff in error.
Isaac E. Congdon, for defendant in error.
This is a proceeding by the plaintiff in error to acquire an easement for right of way and depot purposes in a certain lot in Omaha.
The testimony as to values was limited by an order of the court to five witnesses on each side of the controversy. The property owner produced five witnesses, who each testified generally to several years' residence in the city and to a general knowledge of real estate values in the city and in the neighborhood of the property in suit and of the lot in controversy itself. In the course of cross-examination it was brought out that their estimate of values was based, not only upon said general knowledge and the uses to which the lot was adaptable, but also upon the prices for which, according to their information, neighboring lots had recently been sold, and upon the revenues which could probably have been derived from the property in conjunction with a building that might have been erected thereon at an estimated cost. On account of the admitted influence of this last-mentioned element upon the judgment of the witnesses, the company moved that their testimony be stricken out. An order of the court denying the motion is assigned for error. We think the assignment is not well made. The objection went to the weight to be given to the testimony of the witnesses, and not to their competency. The latter had been established by answers to preliminary questions upon the examination in chief, and is not shaken by anything elicited, or attempted to be, on cross-examination. If, in such case, the entire testimony could be excluded because the opinion of the witness appears to have been influenced in some degree by matters impertinent to the inquiry, it might reasonably be apprehended that no witness concerning the value of real estate could be found who could successfully withstand the test. The estimates of values in such cases are in their very nature in a large degree speculative and conjectural, and in making them different minds will be influenced in varying de grees by a multitude of circumstances. That, among such circumstances, a competent witness has considered some that he ought to have disregarded, cannot properly be held to totally discredit his entire testimony, so as to require the whole of it to be withdrawn from consideration. The case is analogous to one in which the witness is shown upon cross-examination to have been mistaken as to some important matter of fact, or even to have willfully testified falsely. In all such instances the testimony is not stricken out, but its weight and credibility, under proper instructions from the court, are left to the determination of the jury. That the witnesses in this case were sufficiently shown to be competent is too well established to be shaken, by repeated decisions of this court. Railroad Co. v. Schluntz, 14 Neb. 421, 16 N. W. 439;Storage Co. v. Rogers, 35 Neb. 61, 52 N. W. 826; Railway Co. v. Griffeth, 44 Neb. 690, 62 N. W. 868;Mullen v. Kinsey, 50 Neb. 468, 70 N. W. 18.
At the conclusion of the trial the court gave the following instructions: ...
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Telluride Power Co. v. Bruneau
... ... for direct examination. (U. P. Ry. Co. v. Stanwood, ... 71 Neb. 150, 98 N.W. 656; Robinson v. Railway Co., ... 175 N.Y. 219; Becker v. Railway, 177 ... ...
- Union Pacific Railroad Company v. Stanwood