143 Pa. 503 | Pa. | 1891
Opinion,
We are not able to agree with the learned court below in the interpretation given to the agreement signed by the plaintiff, in relation to the construction of the defendant’s road on his land. It is in the following words, viz.:
“ I hereby agree in behalf of the railroad to be constructed along the Big Fishingcreek, from a point near its mouth and following its general course to Cole’s creek, thence, by the most eligible route, along the gorge of its eastern branch into Sullivan county, to connect with the State Line & Sullivan Railroad, to be extended to the state line at or near Waverly, that I will release to the company which undertakes to construct such road, the right of way of lawful width through my land in Orange township, Columbia county, Pennsylvania; the damage to be assessed when the road is located, and the amount of said damages to be paid in stock in said railroad. Cost of fencing not included in damages, provided no damage is done my buildings, race, or water-power.
“ Witness: John W. Hoffman.”
“ H. J. Conner.”
The learned court below instructed the jury that the proviso at the end of the paper related to the whole agreement, and not merely to the cost of fencing; and therefore that, if the jury found that no damage was done to the plaintiff’s buildings, race, or water-power, they could find that the general damage done by taking the land was payable in stock; otherwise, “ the damage would be in dollars and cents, to be paid in cash.” We cannot so read this paper. We can only judge of its meaning by the plain reading of its words. In the photographic
But the appellee contends, now, that the appellant is not at liberty to raise this question, because one of the counsel for the appellant on the trial admitted that if the water-power was damaged, the defendant was liable to a money assessment in this suit. Of course, if a litigant party to a suit asks the trial
By the court: “Merely remarking that we think the offer is proper, we overrule the objection, and admit this release or paper without any further comment at this time, and give the plaintiff a bill.”
It is manifest that the paper was admitted in evidence without any reference to the question of its construction, and also that the defendant’s'counsel could not have meant to surrender the whole question of the manner in which the damages were to be paid, because a part of the offer, as he stated it, was to show that the damages were to be paid in stock of the company. What he said in addition to that was that they did not deny that if the water-power was injured the damage was to be a money assessment. As we understand this, the counsel meant that, if the water-power was damaged, that damage was to be payable in money. But that is a very different thing from admitting that the whole of the damage arising out of the location and construction of the road was to be payable in money. We do not agree with the defendant’s counsel in his understanding of the proviso clause of the agreement, but that would not help him if he had given up the whole question. We do not understand him to have done so, and therefore hold that he is at liberty to maintain the second assignment of error; and we sustain the assignment, because we think the learned court below was in error in its interpretation of the paper in question. But, while we sustain this assignment, it is on the bare question of the interpretation of the instrument only. We do not assume to decide whether there are facts in the case which disable the defendant from taking advantage of the provision for payment in stock. That subject is not before us under any assignment, and, without intimating whether there are any such facts, we simply say that subject is not considered.
We sustain the tenth assignment, because we do not think the agreement prohibited the defendant from interfering with the water-power and race, but only provided that the cost of fencing should not be included in the damages, if no damage was done to the buildings, race, or water-power. But, of course, we do not mean to say that damage to buildings, race, or waterpower is not to be considered by the jury. Under the general
What was said by the court in reference to the possible damage to buildings by fire, from the ordinary operation of the railroad without negligence, was in accord with the decisions of this court upon that subject, and we therefore do not sustain the first, seventh, eighth and ninth assignments. The fact that specific evidence was not given in relation to damage from fire does not exclude that subject from consideration, when it was shown conclusively, that, in point of fact, there were several buildings on the premises, and their respective proximity to the road was given in evidence. Of course, the subject could only be considered in the general way of estimating the value of the whole property before and after the building of the road, and not at all as an object of specific allowance. And this is the way it was presented by the court in the charge and answers.
We do not think there is any merit in the third assignment. The counsel merely presented to the jury an illustration of a physical fact which spoke for itself. The jury simply saw the natural and self-evident fact, that a column of water higher than another column, but of the same dimensions otherwise, would discharge itself with more force than the lower column. It cannot be doubted that the counsel had a perfect right to contend in argument that such would be the case, and we can see no good reason why he could not show the jury the actual natural occurrence in support of his argument. It was an illustration merely, and not an experiment.
We are inclined to sustain the fourth, fifth and sixth assignments, for the reason that while the court stated, in the main correctly, the proper functions of the jury, after a view of the premises, we think somewhat more license was allowed to the jury in the direction of substituting their own opinion for that of the witnesses, than is consistent with our recent decisions. This is rather more manifest in parts of the charge which are not assigned for error than in those that are, but the same idea is followed up and practically repeated in the latter portions. For instance, the court said to the jury: “But it is the duty of
The eleventh assignment is sustained for reasons already stated. The twelfth assignment is not sustained. The matters discussed by the appellant under this assignment are proper for the jury, but they do not involve any matters of law with which we can interfere.
Judgment reversed, and new venire awarded.