Union Traction Co. v. Pfeil

• Citation: 39 Ind.App. 51,78 N.E. 1052
• Decision Date: 02 November 1906
• Docket Number: No. 5,836.,5,836.
• Parties: UNION TRACTION CO. v. PFEIL et al.
• Court: Court of Appeals of Indiana

39 Ind.App. 51

78 N.E. 1052

UNION TRACTION CO.

v.PFEIL et al.

No. 5,836.

Appellate Court of Indiana, Division No. 1.

Nov. 2, 1906.

Appeal from Circuit Court, Cass County; Jno. S. Lairy, Judge.

Condemnation proceedings by the Union Traction Company against Catherine Pfe'l and others. From an award in favor of defendants, plaintiff appeals. Affirmed.J. A. Van Osdol, McConnell & Jenkines and Jenkines & Stuart, for appellant. Walters & Long, for appellees.

BLACK, J.

This was a proceeding instituted by the Indianapolis Northern Traction Company, of which the appellant is the successor, for the appropriation, under the statute, of land for the way of an electric street and interurban railroad through agricultural lands of the appellees. The appellant presents for review the action of the court below upon certain instructions.

In one of the instructions given the court told the jury that, in determining the amount of damages, they should not consider or make any allowance for the benefits “which may have resulted, or may be supposed to result in the future, to defendants, or to their said lands by reason of the construction of said electric railway by plaintiff, for the purposes of which this appropriation is made, through the community in which defendants' lands are located. The law excludes any such benefits or supposed benefits from consideration in cases of this kind.” Since the bringing of this appeal we have had occasion in a number of cases to consider the question presented in this instruction. See Indianapolis Northern Traction Co. v. Dunn (Ind. App.) 76 N. E. 269;Indianapolis Northern Traction Co. v. Ramer (Ind. App.) 76 N. E. 808;Carroll v Muncie, etc., Ry. Co. (Ind. App.) 78 N. E. 254. While a comparatively large portion of appellant's brief is given to this question, it is not improper to say that, in a recent oral argument of the cause, it was not pressed by the appellant, probably because of those intervening decisions, to which we still adhere.

The appellant objects here to the seventh instruction given at the request of the appellees, because in mentioning therein certain circumstances which it was said if they existed, might be considered by the jury, the court did not expressly confine such consideration to matters shown by the evidence to exist, and also on the ground that the instruction invited the indulgence of conjecture and the consideration of speculative and fanciful damages, and further because the instruction permitted consideration of inconvenience and danger, if any, to the owner or his family, in crossing the track and right of way of the appellant. The circumstances which the jury were thus permitted to consider were not submitted to them as separate and additional elements of damages, but the jury were told that they might consider them, if they existed, in determining the extent of the damage, if any, to the remainder of the farm, as affecting the extent of the depreciation in the value of the land, if any. No particular circumstance of those referred to in the instruction is specifically designated by the appellant as being objectionable, except that relating to inconvenience and danger to the owner “or his family”; emphasis being placed on the last three words, no objection being urged against the additional words “or his stock,” in the instruction.

It is stated by the appellees in their brief that there is abundant evidence on all the points suggested in the instruction, and this statement is not contradicted by the appellant, nor is it claimed as to any matter referred to in the instruction that there was not evidence relating to it. In an instruction given at the request of the appellant, the court told the jury, amongst other things, that they should in their deliberations agree upon and find no damages for the appellees “until you can agree and find that a preponderance of all the evidence in the case sustains and justifies you in believing that a particular sum will be a fair measure of compensation and damages to which the appellees are entitled.” In an instruction given at the request of the appellees, the jury were told that it was their duty to render a verdict in accordance with the law applicable to the case, as stated to them by the court, and in accordance with the evidence, as it had been given under the direction of the court in the trial of the cause; that they were not at liberty to disregard either the law or the evidence as thus placed before them, and were not at liberty to follow their own opinion, if contrary to the law or evidence so given. In other instructions given at the request of the appellant, the jury were told that they could not allow any damages in this case which were remote, imaginary, uncertain and conjectural, or speculative in their nature, even though testified to by witnesses; that the damages must be such, and only such, as would compensate the appellees for their actual pecuniary loss; and the damages were limited expressly by instructions given at the request of the appellant to the fair market value of the land taken for the right of way, the damage to the remainder of the farm, and the value of the crops, if any, growing on the right of way when possession was taken, and destroyed by appellant. The instructions must be considered as a whole, and the jury would not be misled by the mere omission from the seventh instruction above mentioned, of words expressly limiting their consideration to such matters therein...