Reading & Pottsville R. v. Balthaser

Opixiox, Mr. Justice Williams: The admission of the evidence complained of in the first assignment of error was entirely proper as the case stood at the time. The defendant’s counsel had, by their cross-examination, drawn from Mary Balthaser the statement that the Messrs. Atkins were operating the quarry on the lands of the plaintiffs at the time the railroad was located upon them, under a lease from herself and children. In order to explain this answer and show that the lease to A tlrins did not affect the plaintiffs’ right to recover, one of the sons who made the lease was called, for the purpose of showing that the lease'covered but a small part of the quarry and that the railroad did not touch or affect the part so occupied by the Atkins. This was no necessary part of the plaintiffs’ ease, and became important only because of the cross-examination of Mary Balthaser and for the purpose of explaining it. For that purpose it was competent and relevant. The second assignment raises a very different question. When the quarry was opened originally it would seem that the canal was the only available line of transportation for its products. The Reading railroad afterwards built a branch across the Schuylkill river in the neighborhood of the quarry, but charged an additional rate of ten cents per ton on all freight passing over this branch, so that shipment of heavy freight over this line does not seem to have been desirable for the owners of the quarry. The defendant’s road was built to and across the plaintiffs’ lands. Whether this additional line of transportation was or was not an advantage to the owners of the quarries was a proper subject for consideration by the jury, but the evidence referred to in this assignment threw no light upon that question. It was not important for the jury to know [10] where the yield of the quarry had been marketed in years gone by, or what line of transportation had been employed before the new facilities were offered to its owners. The true inquiry was, whether a broader market and better facilities for shipment were put within their reach by the building of the defendant’s road; or, in other words, whether there were advantages to be set off against the disadvantages arising from the appropriation of the plaintiffs’ land for the right of way of this road. The objection to this evidence should have been sustained. The inquiry which it entered upon was not helpful or relevant. But as the court admitted it, and so opened the subject of the modes and cost of transportation existing in former years, it is not easy to see on what ground the defendant’s offer, the rejection of which is the subject of the third assignment, was excluded. The offer was to show that rates of freight by rail had been reduced in consequence of the building of the new road. If this subject of freights had not been opened, the rejection of this offer would have been right. Having let the plaintiffs into this sort of proof, the defendant should have been permitted to reply. The door should have been closed to both. The fifth assignment is also well taken. On a previous trial of this case witnesses were allowed to estimate the damages sustained by the plaintiffs by calculating the number of tons of limestone under the surface of the right of way, and multiplying that by the estimated price per ton, reaching a value of several thousands of dollars per acre. This was one of the reasons for the reversal of the judgment by .this court and sending it back for another trial. We held that such a method for fixing the value of land was speculative, and could not be applied to land taken by virtue of the right of eminent domain. It involves an uncertain estimate of the quantity and quality of the stone, includes necessarily the use of labor and capital, requires skill and intelligent supervision on the part of the operator, and vigilance and success in the financial management. No human mind can foresee the presence of these elements of business success, or forecast the profit or loss of actual operations, if the stone be removed at the ordinary rate of quarrying. The true rule is that which quits the realm of speculation and comes down to what is within the know [11] ledge of business men living in the neighborhood, viz., what was the fair selling value of the property before the defendant entered upon it ? What is its fair selling value as affected by that entry ? The difference is the true measure of the loss sustained by reason of the entry. But notwithstanding the plain manner in which this rule was stated when this case was here before, the witnesses on the last trial placed their estimates of the plaintiffs’ damages at the same sums as when they were examined on the former trial. Defendant’s counsel asked them on cross-examination whether they had not made a new arrangement of the items or elements of the damage so as to enable them to fix the damages at the same total as before, but by a different process, and whether this was not done in consequence of the decision of this court holding that the value of tlio stone in place could not be fixed by the ton, and the total so reached taken as the market value of the land. This the court excluded. It was, however, a proper cross-examination. It reached after the real basis on which the witnesses made their estimate, and it afforded a test of the fairness and candor of the witnesses themselves. It was in no sense an examination upon a legal question, or upon the manner in which the witnesses understood the rule laid down by this court, but into the reason on which they acted. Knowing that they had no right to make their estimate now as they had made it before, had they not, nevertheless, done so, and given a false color to their testimony? This was the force of the examination proposed, and it was clearly within the lines of legitimate cross-examination. The errors assigned to the charge upon the subject of the duty of the jury in the ascertainment of the damages cannot be sustained. The rule was correctly stated by the learned judge. Ho said : “All the testimony from any part of the plaintiffs’ witnesses who spoke of valuing the limestone underlying the railroad must be disregarded by the jury, and the testimony of these witnesses must be taken, not to the stone underlying the railroad, but what was the true market value; and if their market value that they testify to has reference to the limestone which underlies the railroad, and making that a special part of the difference in the market value, that must be disregarded by the jury.” This instruction is in accordance with the rale [12] laid down, by this court. The jury may have disregarded it, but it was plainly presented to them. The remedy for a disregard of instructions is not upon writ of error, but by an application to set aside the verdict, which under proper circumstances the trial judge should not hesitate to do. The ninth assignment relates to the direction to the jury to allow interest. This was technical error. The lapse of time between the happening of an injury and the time of trial is a proper subject to be considered by the jury in making up the amount of damages for which to render a verdict, but interest, as such, is not recoverable in actions ex delicto. In actions where a definite sum of money is demandable as a debt, interest at the legal rate is a matter of right, and the jury may properly be directed to include it in their verdict; but actions brought to recover unliquidated damages for a wrong done, proceed upon a different basis. The nature of the wrong, the attending circumstances, and the time when it was committed, are all for the jury, and may be properly considered in the adjustment of the amount of the verdict. The learned judge said to the jury: “ After you have ascertained that there is any damage, you will allow interest on that sum from May 19,1885, to the present time.” This would have been an appropriate direction in an action ex' contractu, because interest is a legal incident of a debt, but is not justifiable in an action of trespass. We might not have reversed for this alone, but as the case goes back for other reasons, we again call attention to this well-settled distinction between actions resting on contract and those growing out of a tort, so far as interest is concerned. In the former, interest is demandable as interest; in the latter, it is not. In the former, the court may properly direct its allowance ; in the latter, the question belongs to the jury. It may, or it may not, enter into their calculation of the damages. Whether it shall or not depends on the judgment of the jury in view of all the circumstances of the case. If it is included in the verdict, it is simply as one element of the damages sustained by the plaintiff and liquidated by the verdict. The judgment is reversed, and a venire facias de novo awarded.