Warden v. Philadelphia

•warden’s appeal. Per Curiam, If this case were before us on a motion for a new trial, much of defendant’s elaborate argument would perhaps be relevant and worthy of serious consideration; but, that motion appears to have been properly entertained by the court below, and, after due consideration, a new trial was refused on condition that plaintiff would remit $15,990 of the damages found by the jury. That condition having been complied with, judgment was entered on the verdict thus reduced. On this appeal our inquiry is necessarily restricted to questions of law involved in the assignments of error. In four of the specifications, — 3d to 6th inclusive, — the subjects of complaint are the excerpts, from the learned trial judge’s charge, recited therein respectively. In the general charge, the jury were clearly and distinctly told, inter alia, that the sole question for their consideration was : “ What was the fair market value of ” plaintiff’s property on May 1, 1892, when it was taken by the city? The instructions relating thereto were well calculated to impress upon the jury the propriety of closely adhering to that question in their consideration of the testimony; and, whether portions of the charge assigned as error be separately considered, in their detached form, or in connection with the context and as parts of the entire charge, we fail to discover any substantial error in either of them. With the exception of the instruction as to interest, which was remedied by remitting a sum fully equal thereto, the charge as a whole was adequate and substantially correct. As to the omission of the court to comment on the alleged “ extraordinary estimate of Henry Warden and other witnesses called by the plaintiff,” etc., complained of in the seventh specification, it is sufficient to say that the learned judge was not [529] requested to comment, favorably or otherwise, on the testimony of any of the witnesses, and in the absence of such request he was not bound to do so. The record shows that points for charge were submitted by defendant, and then withdrawn, but what they were or why they were withdrawn does not appear. There is no merit in the second specification. It is not alleged, nor does it appear, that the witness was incompetent. An examination of his testimony not only shows that he was a competent witness, but that his testimony, including the portion quoted in the specification, was relevant to the issue before the jury. The only remaining specification that requires notice is the 1st, alleging error in overruling the following motion, viz: “ That the court order that the testimony produced by the plaintiff as to what might have been the value of this property cut up into lots, opening streets, giving frontages, making it entirely different on a plan which did not exist there and does not exist, except in the scheme of the witnesses and the claimants, be stricken from the record.” In view of the rather vague and indefinite character of this motion, the time when, and the circumstances under which it was made, etc., the learned court was clearly right in refusing to entertain it. It was not made until after the trial had progressed for two days; all of plaintiff’s testimony in chief (150 printed pages) had been received, and he had rested. If the motion had been granted and the order made, it would have been very difficult, if not impossible for the parties in interest to know how much of the one hundred and fifty pages of plaintiff’s testimony had been stricken out. During the time that was occupied by plaintiff in the introduction of his testimony, witness after witness was called and examined without objection and elaborately cross-examined in relation to matters — presumably referred to in the motion. Indeed, a very considerable part of the testimony was of that character, and all of it was offered and admitted without objection until the plaintiff closed his testimony in chief, and then the motion was sprung upon him. If defendant’s counsel then for the first time began to realize that what he now calls irrelevant and incompetent testimony had been admitted, the very least that he should have done, in his appeal to the discretion of the court, would have been to specify particularly the por [530] tions of the testimony at which his motion was aimed. In denying the motion, there is nothing that savors of an abuse of discretion on the part of the learned trial judge. We find nothing in the record that would justify much less require us to sustain either of the specifications of error. Judgment affirmed. BRADBURY’S APPEAL. Per Curiam, April 29, 1895: In the court below this case was tried with No. 151 of this term, William G. Warden against same defendant, in which an opinion has just been filed. The questions involved are substantially the same in both. For reasons briefly stated in the opinion referred to we think the judgment in this case also should be affirmed. Judgment affirmed.