Sutton v. Pennsylvania Railroad

Opinion by Mr. Justice Potter, This is an appeal from a judgment entered upon the verdict of a jury, in the trial of an appeal from an award of viewers in proceedings to assess damages for the taking of plaintiff’s land for railroad purposes. The first and second assignments of error relate to the admission of the testimony of witnesses whose competency it is alleged was not established. Both these assignments are faulty in failing to refer to the pages of the paper-book where the matter may be found in its regular order in the printed evidence. The two witnesses whose competency is questioned were property owners in the vicinity and were well acquainted with the property in question. They did not claim to be experts, but said they were able to judge of the value of plaintiff’s property because they knew what people were asking for property and what they were willing to pay for it in the vicinity, and they also knew the actual selling price of properties in the neighbor [277] hood. It is true that each of them specified only two or three properties. But there was no cross-examination to test their further knowledge in this respect. It may be that further interrogation would have shown that they possessed a wider acquaintance with the values of specific properties. Both of the witnesses had lived in the neighborhood for nearly twenty years, and one of them had had an experience of nearly that length of time in appraising the values of properties for the purpose of making loans thereon. We cannot say that either of these witnesses fell short of the standard laid down in Friday v. Pennsylvania R. R. Co., 204 Pa. 405; Reed v. R. R. Co., 210 Pa. 211, and Hope v. R. R. Co., 211 Pa. 401. Their qualification for estimating intelligently the injury sustained by the plaintiff in this case would seem to have been quite up to the requirements held sufficient in Leiby v. Water Co., 205 Pa. 634, where two witnesses living in the neighborhood and familiar with the ground taken by defendant, but neither of whom could recall more than two actual sales, were held to be competent. These assignments are therefore not sustained. The third assignment of error complains that the court below failed to call the attention of the jury to the assessed value of plaintiff’s property, based on the testimony of the township assessor, who had held that office for sixteen years. The court did, however, in the course of the charge, call attention in a general way to the qualifications of the witnesses and pointed out that it was the special business of some of them who were real estate agents, to be informed as to the value of lands in the vicinity. Reference was also made to other witnesses who were not experts but who owned lands in the neighborhood. It is suggested in the argument that the defendant’s witness, Humphreys, who had been the township assessor for many years, was such a specially well qualified and disinterested witness as to the value of plaintiff’s land, that the omission of the court to refer in any way to his testimony must have seriously prejudiced the defendant’s case. The trial judge might very well have called the attention of the jury to the special qualifications of this witness, whose training and observation had apparently fitted him to speak accurately with regard to the value of the land. The propriety of a similar instruction was upheld in Heilbruner v. Wayte, 51 Pa. 259, which was an [278] action to recover the price of timber sold. There a public measurer was called as a witness to the condition of the timber when delivered. The court charged that “ The measurer is generally a sworn officer, and what he does is to be taken at least as prima facie evidence that his measurement was correct.” The action of the court in that case, in impressing upon the jury the idea that the testimony of the public measurer was of more value than the testimony of other witnesses, was assigned as error, but this court dismissed the assignment and affirmed the judgment. At the trial of the present case the defendant did not ask for specific instructions as to the weight to be given to the testimony of the assessor, nor does it appear that the attention of the trial judge was called to the omission to charge on this subject. If specific instructions upon this point were desired, they should have been asked for. “ In the absence of request the court will not be reversed for what is left unsaid, if what was said was not misleading : ” Ott v. Oyer, 106 Pa. 6. The fourth assignment of error complains of the refusal of a point in which the trial judge was asked to instruct the jury as to the weight to be given to the testimony of plaintiff’s witnesses as to damages resulting from smoke, noise and dust. The point submitted appears to have been a proper one, as it called attention to the necessity for distinguishing between the results from the operation of the railroad at and before the time of the taking of the land in this case, and those which might follow in increased measure from the future and enlarged operation of the road. The answer of the trial judge was not responsive to this point, as he merely instructed the jury that they might consider the probable increase of smoke, noise and dust in connection with the other damages. But the intention of the point as presented, was evidently to cause the jury to scrutinize the evidence of the witnesses, to see whether, in making their estimate of damages, they had distinguished between the injuries resulting from the operation of the road as it had been conducted, and those which would be caused by the operation of the road under the new construction. This was a proceeding to widen the roadbed, and in so far as damages from smoke, dust and noise were concerned, it was only the increased burden in this respect, caused by the operation of the [279] widened roadway, which could be considered. If the witnesses had failed to make this distinction, as was suggested in the point, then the basis upon which they estimated that portion of the damages was incorrect. The credibility of the witnesses was for the jury and the instruction asked for was intended to remind the jury that, before accepting the estimate of the witnesses, they must be satisfied that in so far as it related to smoke, noise and dust, it was confined exclusively to those resulting from the new taking. In any view of the case, the defendant was entitled to a direct answer to this point, and the failure of the court to give it was error. Chief Justice Tilghmait said in Smith v. Thompson, 2 S. & R. 49 (51) : “ When a question is distinctly proposed to the court, the party proposing it is entitled to a distinct answer, and it is error to refuse or evade it. This is a rule of very great importance.” Again, in Whitmire v. Montgomery, 165 Pa. 253 (261) Justice Fell says, “ The rule is that a party is entitled to a distinct and responsive answer to his points if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal.”' The fourth assignment of error is therefore sustained, and the judgment is reversed with a venire facias de novo.