Osborne v. Delaware County & Philadelphia Electric Railway Co.

9 Pa. Super. 632 | Pa. Super. Ct. | 1899

Opinion by

William W. Pouter, J.,

This is an action for damages brought by a property owner against a street railway company for constructing a track on a highway opposite the plaintiff’s property without his cónsent.

The learned trial judge, both in his rulings upon the evidence and in the views expressed in his charge, was evidently in doubt throughout the trial as to the proper measure of damages to be applied. At an early stage of the trial, he excluded the testimony of persons (having knowledge of real estate values in the neighborhood), offered by the plaintiff to prove the value of the plaintiff’s property before and after the construction of the defendant’s road. Subsequently, he expressed in his charge the opinion that he should have admitted the testimony, and the case went to the jury, in part, on the question of damages on the basis of the difference in value before and after the building of the.railway. The plaintiff, however, lost the effect of the testimony which he offered to present. We are of opinion that the learned judge erred in not admitting it. It was certainly one method of ascertaining what damage the plaintiff had suffered. The opinion of the Supreme Court, in Thompson v. Traction Co., 181 Pa. 131, was not reported at the time of the trial of this case. It was there said, by Mr. Justice McCollum (upoti facts strikingly similar to those of the case before us) : “The plaintiffs were justified in regarding the railway as a permanent structure, an additional and continuing servitude on their land within the highway. They could not compel a change of grade or location, nor remove the embankment which interfered with access to their lot and was necessary to the support and operation of the railway. Their only remedy was an action to obtain' compensation for the injury inflicted: Penna. R. Co. v. Montgomery County Passenger Ry., 167 Pa. 62. No good reason appears for holding that the rulings and instructions in regard to the measure of compensation were erroneous.”

Referring to the rulings thus affirmed, we find that the trial judge in that case applied the rule of difference in value before and after taking, and further, permitted testimony to be introduced showing the cost of restoring the property injured to the condition in which it was before the injury, restricting the application of the testimony, however, by charging that it amounted to nothing if the property was not injured in its market value. This authority is a guide for the retrial of this case.

We, therefore, sustain the first and second assignments and so much of the fifth assignment as shows the charge to be in conflict with the views herein expressed.

The third assignment is founded on the exclusion of the testimony of the witness, Gray. The exclusion was a sound ruling. The question, upon which the final ruling was had, asked the witness to say, whether in his judgment the plaintiff’s property had been damaged, and if so, how much and to what extent. It was not to draw out any fact which might aid the jury in the performance of their duty, but a request to express an opinion without showing that the witness had any facts peculiarly within his knowledge to give his opinion value as testimony.

The fourth assignment being a small excerpt from the charge, severed from the context, does not disclose inherent error, and is not sustained.

The suggestion of counsel for defendant that the plaintiff’s action cannot be maintained because the construction of the defendant’s railway in front of the plaintiff’s property was but a crossing of tracks within a borough by permission, cannot be considered. It in no way arises as the case is now presented.

The judgment of the court below is reversed, and a venire facias de novo is awarded.