59 Neb. 544 | Neb. | 1900
The Chicago, Rock Island & Pacific Railway Company instituted condemnation proceedings in the county court to acquire right of way over and across certain real estate belonging to J. V. Farwell, Jr. Commissioners were duly appointed by the county court to assess the damages, who awarded the landowner the sum of $2,200. The railway company prosecuted an appeal to the district court, where the cause was tried to a jury, who returned a verdict in favor of Farwell in a like sum. Prom the judgment subsequently entered thereon he prosecuted a petition in error to this court, which was sustained, and the judgment was accordingly reversed. See Farwell v. Chicago, R. I. & P. R. Co., 52 Nebr., 614, 53 Nebr., 706. A second trial in the district court terminated in a verdict and judgment for the landowner for the sum of $4,692.90, and the cause is now before us at the instance of the railway company.
During the second or last trial of this cause in the court below the jury were permitted, and directed, by the court to view the premises in controversy, and they were instructed as follows:
“9. You were sent to view the lots in question, not for the purpose of furnishing any evidence to you of their value, or that you might in any manner be made witnesses concerning such value, but for the sole purpose that you might thereby be placed in a better position to understand the testimony theretofore received. The purpose of said view is by the law thus limited, and you must consider it in no other light or for any other purpose.”
An exception was taken by the railway company to this paragraph of the charge of the court, and its giving is assigned for error in this court. The instruction was faulty. The view of the premises was evidence, and it was prejudicial error to otherwise instruct the jury. As well say that the plans, photographs and diagrams of a
Reversed.