Appellee recovered a judgment for $10,000 for damages to his property caused by appellant’s negli
Appellant was not allowed to ask appellee’s witnеss Stow-ell on cross-examination the following question: “Do you say it makes a difference of $2 an acre in fifteen minutes in the price ?” Aрpellee owned lands in seven different sections that were burned over, and the witness on direct examination had testified as to the values of the various parcels before and after the fire. Appellant was taking the witness over the same ground, and the excluded question appears in the following connection: “Q. Now take the land in section eighteen, what was that worth before the fire ? A. About $5. Q. About $5 ? You told Mr. Youche (on direct examination) it was worth six or seven, didn’t you ? A. I don’t know. Q. You don’t know? A. No, sir. Q. Do you say it makes a difference of $2 an aсre in fifteen minutes in the price (in the time since you testified on direct examination) ? The court: I can’t permit that. * * * Treat the witness fairly.” If therе was any doubt as to the propriety of the court’s action, and if that doubt could be magnified into an abuse of discretion in controlling the cross-examination, the error would be harmless, for, after the witness’s attention had been called to the relative locations оf various sections, the cross-examination was allowed to proceed thus: “Q. Now how does it come that you made this difference in your estimate of $2 an acre? A. Well, I was mistaken in the section. Q. Made a mistake in the section ? When did you make the mistake, before or now? A. Just now. Q. Just now? A. Yes sir, I was thinking of another section.” Appellant claims to have been injured by the remarks made by the court in excluding the forеgoing question. The exception was taken to the rejection of the question. No exception was taken to the remarks of thе court, nor was the alleged misconduct specified as one of the grounds for a new trial.
The following question was also propounded to the wit
Appellee’s witness Dinwiddie was asked on direct examination : “Take that same land after the fire, what was it wоrth after it was burned ?” Appellant objected to the witness’s being permitted to answer on the ground that he had not shown himself qualified to speаk on that subject. The witness had stated that he had lived since 1853 on lands adj oining appellee’s, was well acquainted with the nature and valuе of lands in the neighborhood, including appellee’s, and had given without objection his opinion of the value before the fire. The objection to' his giving his opinion of the value of appellee’s lands after the fire is based upon his testimony that he had only been upon а small portion of them since they were burned. The witness had stated that he had observed how appellee’s lands were burned, and that hе had had experience with lands of the same kind that had been similarly burned, and knew their value. Although the extent to which the witness had been upоn appellee’s lands after the fire was limited, there was no limitation in his answer as to his observations. But even if his observations were limited, the objection went rather to the weight than to the competence of his testimony.
The court gave this instruction: “The rule for the measure of damages, if there is a right of recovery, is the difference, if any, between the fair market value of the land burned over, belonging to the plaintiff, immediately before the fire and its fair market value immediately afterwards.” Counsel are correct in saying that appellаnt should pay
In regard to the personal property, the court charged:
It is ordered that the judgment, as to* $9,800, be affirmed at appellee’s costs, if within thirty days he shall enter a remittitur for $200 as of the date of the judgment; otherwise, it is ordered that the judgment be reversed and a new trial granted.