85 Neb. 228 | Neb. | 1909
This is an appeal from the judgment of the district, court for Lancaster county in a proceeding by defendant
It is claimed by defendant that, plaintiff having elected
A number of questions propounded to plaintiff and his witnesses Avere objected to, the objections overruled, and to Avliich defendant excepted. To discuss them separately Avould extend this opinion to an unAAarrantable length. The legal propositions presented will be noticed. It Avas conceded that the land taken comprised 7 acres in a strip 150 feet wide through plaintiff’s quarter section, leaving 12 acres on one side of the track and 141 on the other, 12 acres having been previously taken for right of way for another track. Plaintiff sought to prove the value of the 7 acres actually taken and the diminution of the value of the remaining laud; the whole being a farm in one compact body. To this defendant objected. Its contention is that the valuation of the 7 acres should be based upon the average acreage value of the farm. There Avas evidence that the 7 acres was of the best portion of the land, and hence the most valuable. In addition to proving the value
It is next contended that there was error in the instructions given to the jury. The eighth is too long to be here copied. The different elements of damage to the land not taken were stated with exactness, at least, in part, “the liability of stock to be killed, the danger of fire
The court instructed the jury that, if their finding of damages did not exceed the sum of $2,700, no interest should be allowed, but that, if they found above that sum, interest should be computed by them at the legal rate. The criticism of this instruction is that, by inference, it informed the jury of the amount found due by the appraisers, and was, in effect, a suggestion which might induce them to find for more than that sum in order to give plaintiff interest. It is possible that such might have been the effect of the instruction, and yet we cannot see that it was reversible error. In Bolar v. Williams, 14 Neb. 386, an attorney, in Hying a case before a jury in the district court, stated that the cause had been tried in justice court, giving the result. No exception was taken, and the question was not presented for review, but the remark was referred to as “a gross breach of propriety,” etc. There is no contention in this case but that the rule given was correct, but it is claimed that it should have been given in another way. For the purpose of obviating this difficulty, defendant asked an instruction directing
After the returning of the verdict, affidavits of jurors were filed, stating, in substance, that one of the jurors who desired to return a larger verdict than that rendered had stated in the jury room during their deliberations that another railroad company had constructed its road across his land, and that he knew the inconvenience of it, and that his Amte was from $3,500 to $4,200. The verdict was for $3,659.32, including interest at 7 per cent, for the one year and six months, making the damages found about $3,300. The question is raised as to the propriety of tiling and considering such affidavits for the purpose of impeaching the verdict; but, as it is shown that substantially the same statement was made by the juror on his voir dire examination, it is not deemed necessary to notice the matter further, as the defendant could not be heard to complain, there being no showing that it could ■not have excluded him.
Finding no prejudicial error in the record, the judgment of the district court is
Affirmed.