Union Pacific Railroad Company v. Stanwood

• Citation: 91 N.W. 191,71 Neb. 150
• Decision Date: 04 June 1902
• Docket Number: 11,619
• Parties: UNION PACIFIC RAILROAD COMPANY v. SARAH N. STANWOOD. [*]
• Court: Nebraska Supreme Court

91 N.W. 191

71 Neb. 150

UNION PACIFIC RAILROAD COMPANY v. SARAH N. STANWOOD. ^[*]

No. 11,619

Supreme Court of Nebraska

June 4, 1902

ERROR to the district court for Douglas county: IRVING F. BAXTER JUDGE. Reversed.

REVERSED.

W. R Kelly and John N. Baldwin, for plaintiff in error.

W. J Connell and Isaac E. Congdon, contra.

AMES, C. DUFFIE, C., concurring.

OPINION

AMES, C.

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 so 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 degrees by a multitude of circumstances. That among such circumstances a competent witness has considered some that he ought to have disregarded, can not 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 wilfully 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. Burlington & M. R. R. Co. v. Schluntz, 14 Neb. 421, 16 N.W. 439; Omaha Auction & Storage Co. v. Rogers, 35 Neb. 61, 52 N.W. 826; Chicago, R. I. & P. R. Co. v. Griffith, 44 Neb. 690, 62 N.W. 868; Mullen v. Kinsey, 50 Neb. 466, 70 N.W. 18.

At the conclusion of the trial the court gave the following instructions:

"Fourth. The jury are instructed that the appellant, Sarah N. Stanwood, is entitled to recover from the defendant railroad company, in this case, the fair market value of the property at the time of its taking, which was on the 10th day of December, 1898. By 'fair market value' is meant the value of the property at the time of the taking, considering its worth for any purpose for which it might reasonably be used in the immediate future, taking into consideration the capabilities of the property, and all the uses and purposes to which it was adapted or to which it might be applied in the immediate future, and any advantage, if any, that the property had, at that time or in the immediate future, by virtue of its position and situation, and for which it was then or in the immediate future available. The 'fair market value' is not what the property is worth solely for the purpose for which it is devoted, nor for the purpose for which the party condemning it proposes to put it; but it is the highest price the property will bring, at the time of the taking, for any and all uses to which it is devoted and adapted, and for which it is available.

"Fifth. You are further instructed that, in ascertaining from all the evidence in this case the value of said property so appropriated by the defendant company, you can not take into consideration prospective increases in the value of said property, or the improvements to the lots or land, in the immediate vicinity, which were not then in existence or in the course of construction. You can not indulge in speculation or conjecture in arriving at the value of the property so taken."

"Seventh. The jury are the sole judges of the weight of the evidence and the credibility of the witnesses. In passing upon the credibility of the witnesses, it is your duty to take into consideration their appearance upon the witness stand, their manner of testifying, their interest or lack of interest, if any, in the result of the suit, their distinctness of recollection, means of knowledge, the probability or improbability of their statements, and the extent to which they have or have not been corroborated by the testimony of other witnesses, or by facts and circumstances admitted or proved upon the trial. You should not disregard the testimony of any witness unless, for any reason, you find it to be unreliable. If the testimony of the witness appears to be fair, is not unreasonable, and is consistent with itself, and the witness has not been in any manner impeached, then, you have no right to disregard the testimony of such witness from mere caprice or without cause."

It is complained of these instructions, especially that numbered "fourth," that they are...