Wilmington and Reading Railroad Co. v. Stauffer

• Decision Date: 04 February 1869
• Parties: The Wilmington and Reading Railroad Company <I>versus</I> Stauffer.
• Court: Pennsylvania Supreme Court

60 Pa. 374

The Wilmington and Reading Railroad Company versus Stauffer.

Supreme Court of Pennsylvania.

January 20, 1869.

February 4, 1869.

January 20th 1869.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., absent. WILLIAMS, J., at Nisi Prius.

Error to the Court of Common Pleas of Chester county: Of January Term 1869, No. 266.

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W. Darlington (with whom was W. Townsend), for plaintiffs in error.—The damages referred to in the point and spoken of by the judge in the parts of the charge excepted to were merely speculative, and could not be considered by the jury: Sunbury & Erie Railroad v. Hummell, 3 Casey 99; Lehigh V. Railroad v. Lazarus, 4 Id. 206; Lee v. Milner, 2 M. & W. 824; Turner v. Sheffield Railroad, 10 Id. 425; Patten v. N. Central Railroad, 9 Casey 432. The company would be liable only for negligent use: Lackawanna & B. Railroad v. Doak, 2 P. F. Smith 381; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Watson v. Pittsburg & Conn. Railroad, 1 Wright 479; Green v. Reading, 9 Watts 383; Commonwealth v. Fisher, 1 Penna. R. 463; Henry v. Pittsburg & Allegheny Bridge Co., 8 W. & S. 86.

W. McVeagh (with whom was Rees Davis), for defendant in error.—The landholder is entitled to compensation in full, according to the best estimate from actual elements that can be obtained: Harvey v. Lackawanna & B. Railroad, 11 Wright 428; E. Pennsylvania Railroad v. Hiester, 4 Wright 53; Searle v. Lackawanna & B. Railroad, 9 Casey 57; E. Pennsylvania Railroad v. Hottenstine, 11 Wright 28; Hornstein v. Atlantic & G. W. Railroad, 1 P. F. Smith 87; Thoburn's Case, 7 S. & R. 411.

The opinion of the court was delivered, February 4th 1869, by AGNEW, J.

In determining this case we must consider only the instructions given by the court. Looking at the sum of $700 for damages done to the barn, found in the statement of items returned by the jury, it is possible they misunderstood or disobeyed the instructions. For this error the remedy was a new trial. But one question is involved in the assignments of error, and we may therefore follow the example of the plaintiff in error, and consider all together. The court told the jury distinctly they could not compensate the plaintiff for the risk of fire to his barn or its contents, and could not hold the company responsible for anything that might be burned, nor for the risk of such burning. They then said: "But if from the proximity of the road to the building, the danger of fire is, necessarily, so imminent, that no man of common prudence would use it for the purpose of a barn, but would be driven from it and compelled to provide himself with a barn elsewhere, then the plaintiff is clearly injured in this respect, and the jury must consider it in estimating the effect of the road on his property." They then proceed to explain, by stating that the property is depreciated to the extent that it is thus rendered unfit for its proper purpose and use; that the fairest test of the effect of a railroad on property, is a comparison of its value at the time the road was projected, with its value at the time of its completion; that in consequence of this privation of use, the property in the market as a farm would realize the owner just so much less in consequence of the road being there. This is the substance of the instructions, and it will be seen that the court did not authorize any compensation to be given for the burning of the barn, or for the risk of fire, but submitted only the effect which the proximity of the road to the barn would produce upon the price or market value of the property, and this was left to be counterbalanced by the advantages which the property would derive by the construction and use of the road. Thus it will be noticed that it was the depreciation of the value of the property arising from the road, and not an anticipated injury to the premises by fire, which was held to be the subject of compensation. The case is therefore not governed by Railroad Co. v. Hummell, 3 Casey 99, and Railroad Co. v. Lazarus, 4 Id. 203. There is no difficulty in distinguishing it. The finding in Hummell's Case was for $1000, damages that may be done to the buildings from fire by the ordinary use of locomotives, excluding fires arising from negligence or carelessness. That was an evident attempt of the jury...