Hamilton v. Pittsburg, Bessemer & Lake Erie Railroad

194 Pa. 1 | Pa. | 1899

Opinion by

Mr. Justice Dean,

All the material facts in this case are to be found in appeal by same defendant reported in 190 Pa. 51. We find nothing-in the assignments of error calling for special notice, except those from the tenth to fifteenth inclusive, alleging inadequacy and unfairness in the general charge of the court; and the sixteenth, nineteenth, twentieth and twenty-first, alleging error in the admission of incompetent testimony and instruction to the jury on the effect of it.

As to the charge, we cannot say as matter of law it was erroneous, inadequate or partial. We concede, as we must do from our judicial observation in very many cases, that generally, there exists, especially against carrying corporations, an unreasoning prejudice which often results in injustice to them, and that it is the duty of trial courts to combat such prejudice and reach judgments uninfluenced by it. The right of eminent domain is in tlxe commonwealth, to be exercised for the public benefit when she so wills; when she does so will, there is no arbitrary usurpation of power, but merely an assertion of an unquestioned light of sovereignty in the interests of tlxe public as a. whole. Every man who buys a foot of land knows or ought to know, that he takes it subject to this dominant right; it may be taken from him any day; the interests of the whole public are superior to his undisturbed enjoyment of his individual ownership. All tlxe owner can ask is compensation; not that he shall be made rich but that he shall be made whole. The owner, too often forgetting this real relation between himself aud the commonwealth of which he is a citizen, feels outraged by what he deems a violation of his right of property when the clear right is oix the other side, and we see at times whole communities sharing in the indignation of the supposed injured owner; imbibing with him prejudice against the commonwealth’s grantee, and willing, not only to make the owner whole, but also glad to puixish the taker by imposing excessive damages for the exercise of an undoubted right. This prejudice, as argued by appellaixt, perhaps existed in this ease, and may have influenced the verdict; but the learned judge of the court below seexns to have fairly tried by proper rulings and iixstructious to counteract it. If it were manifest that he failed in duty in this particular, we would, without hesitation, reverse for that reason alone. The most we caix say is that perhaps in one or two particulars the charge lacks in clearness ; but on the whole it is in substantial accord with the opinion rendered by us on the former appeal. Therefore we do not sustaixx the assignments of error relating to the chaxge.

As to the errors complained'of in the admission of the testimony of Albert Hamilton and tlxe other witnesses, a number of the answers were incompetent and some irrelevant. In several instances they were not in response to the questions asked. The court sustained some objections to answers and overruled others, and struggled to limit the adxnissioixs to that only which was competent. If, as seems to have been claimed by plaintiffs in their testimony, the packing house, by reason of the combustible material, was a tinder box, within six feet of passing locomotives, then their claim for damages should have been strictly limited to the cogt of rendering the building fireproof or to cost of removal. The defendant had a right to insist on plaintiffs disclosing fully and clearly the exact purpose of the offer; if this purpose had been to show that no prudent man would maintain buildings in such peril, then plaintiffs’ damage would have been the expense of rendering them fireproof or relocating them. If the danger was no greater than the ordinary one the risk could only be considered as one which might or might not depreciate the market value of the property. The court had no aid from defendant’s counsel in compelling a specific offer, and consequently some of its rulings on objections appear inconsistent; but when we consider that the testimony for one purpose might not have been admissible for the other, it is not surprising that error is now alleged. But to cure alleged error which the court tried as best it could to prevent, counsel moved to strike out the whole testimony of the witnesses. A favorable ruling on the motion would have carried out with the objectionable answers much testimony that was competent. The court could not without error sustain the motion. It should have embraced and distinctly pointed out those answers which were erroneous. .The evidence then being properly in, some of it competent to sustain one theory of plaintiff, and some the other, the court merely read to the jury that part of the opinion of this court on the former appeal in which we decided what should be the measure of damages if the owners were compelled to change the character of the structure or to remove it, and what the measure if the onlyrisk was that to which buildings are subjected by the ordinary and lawful running of locomotives. Defendant put four distinct points to the court for instructions on the measure of damages by fire, but in not one of them does it ask it to say to the jury, that if the danger to this warehouse was so imminent as to require a change of character of structure, or its removal, then the damage should be limited to the cost of such change or removal, which the testimony of all the witnesses showed would not exceed $200 or $300. The court in general terms announced the correct rule; defendant was entitled on the evidence to more specific instruction in this particular, if it had been asked, but it was not asked, and we will not assume the court erred in omitting it.

On the whole case we see no error which would warrant a reversal.

The judgment is affirmed.