Leard v. Pennsylvania Railroad

229 Pa. 475 | Pa. | 1911

Opínion by

Mr. Justice Stewart,

The first and third assignments are without merit. When, in a proceeding to assess damages for land taken by a railroad company, a witness is called to prove the market value of the land, it is the right of the other side, before the witness proceeds, to inquire, as to his qualifications to express an opinion on the subject. When this right has been exercised or waived, and the witness admitted, after he has testified to the market value of the land at the time of its appropriation, his competency to testify to the market value as affected by the construction of the railroad, follows as matter of course. The ruling here complained of was the refusal of the court to permit interruption at this stage of the case to allow counsel for the defendant, before the witness had expressed an opinion, to inquire of him what elements of damage he had taken into consideration in making his estimate. Such an examination would not have affected the competency of the witness. That had beén established. If it appeared that he had abated somewhat from the market value before the appropriation because of something which the law would exclude from consideration, it would simply show a mistake on his part which could be corrected then and there, with equal effect whether during his examination in chief or upon cross-examination.

An' element of damage considered in the case was the liability of plaintiff’s land to flooding because of a bridge erected by the defendant company over the Conemaugh river at this point. The bridge is supported by piers which rest on the river bed, and it was claimed that a change in the current of the stream had resulted in consequence; that it now flows towards plaintiff’s land whereas before the flow was to the opposite bank, thus endangering plaintiff’s land in times of high water and freshets. Inasmuch as the danger does not arise from anything done on the land of plaintiff’s which was appropriated by the defendant company, it is contended that it was not an element of damage to be considered. This same question was presented in the case of White v. Penna. R. R. Co., post, p. 480, decided at this present term, and was there fully considered. The ruling in that case applies here. If the liability to flooding because of the bridge piers is so pronounced as to reduce the market value of the land, the plaintiff is entitled to be compensated therefor notwithstanding the piers from which the danger arises are in the bed of a navigable stream. The chief contention was that because of the configuration of the plaintiff’s land it could be endangered by nothing short of an extraordinary flood; and that this much is to be derived from plaintiff’s own witness. The argument on this proposition is not convincing; that is to say, the .proposition is not sufficiently established to justify a court in ruling as matter of law that the evidence amounts to nothing more than a mere conjectural probability of a future flooding. A number of witnesses familiar with the conduct of the river, and acquainted with the general situation in the neighborhood of the bridge, testified that in such freshets as are there to be expected, some thirty-seven acres of plaintiff’s land would be exposed to invasion. There can be no question as to the competency of these witnesses. Whether their testimony was sufficient to establish a degree of probability amounting to a reasonable certainty, that the apprehended danger would be realized, was a question for the jury. The instruction of the learned trial judge on this branch of the case was most explicit. His instruction to the jury was as follows: “The effect of extraordinary floods, the occurrence of which is not looked for and unexpected, you will not consider. Whether or not the floods concerning which witnesses have testified as occurring in the river at this point, by reason of regular or frequent occurrences, may be regarded as ordinary, and their occurrences may be expected and naturally anticipated, is for the jury to determine.” We find nothing in any of the assignments of error calling for a reversal.

Judgment is affirmed.