214 Pa. 274 | Pa. | 1906
Opinion by
This is an appeal from a judgment entered upon the verdict of a jury, in the trial of an appeal from an award of viewers in proceedings to assess damages for the taking of plaintiff’s land for railroad purposes.
The first and second assignments of error relate to the admission of the testimony of witnesses whose competency it is alleged was not established. Both these assignments are faulty in failing to refer to the pages of the paper-book where the matter may be found in its regular order in the printed evidence. The two witnesses whose competency is questioned were property owners in the vicinity and were well acquainted with the property in question. They did not claim to be experts, but said they were able to judge of the value of plaintiff’s property because they knew what people were asking for property and what they were willing to pay for it in the vicinity, and they also knew the actual selling price of properties in the neighbor
The third assignment of error complains that the court below failed to call the attention of the jury to the assessed value of plaintiff’s property, based on the testimony of the township assessor, who had held that office for sixteen years. The court did, however, in the course of the charge, call attention in a general way to the qualifications of the witnesses and pointed out that it was the special business of some of them who were real estate agents, to be informed as to the value of lands in the vicinity. Reference was also made to other witnesses who were not experts but who owned lands in the neighborhood. It is suggested in the argument that the defendant’s witness, Humphreys, who had been the township assessor for many years, was such a specially well qualified and disinterested witness as to the value of plaintiff’s land, that the omission of the court to refer in any way to his testimony must have seriously prejudiced the defendant’s case. The trial judge might very well have called the attention of the jury to the special qualifications of this witness, whose training and observation had apparently fitted him to speak accurately with regard to the value of the land. The propriety of a similar instruction was upheld in Heilbruner v. Wayte, 51 Pa. 259, which was an
The fourth assignment of error complains of the refusal of a point in which the trial judge was asked to instruct the jury as to the weight to be given to the testimony of plaintiff’s witnesses as to damages resulting from smoke, noise and dust. The point submitted appears to have been a proper one, as it called attention to the necessity for distinguishing between the results from the operation of the railroad at and before the time of the taking of the land in this case, and those which might follow in increased measure from the future and enlarged operation of the road. The answer of the trial judge was not responsive to this point, as he merely instructed the jury that they might consider the probable increase of smoke, noise and dust in connection with the other damages. But the intention of the point as presented, was evidently to cause the jury to scrutinize the evidence of the witnesses, to see whether, in making their estimate of damages, they had distinguished between the injuries resulting from the operation of the road as it had been conducted, and those which would be caused by the operation of the road under the new construction. This was a proceeding to widen the roadbed, and in so far as damages from smoke, dust and noise were concerned, it was only the increased burden in this respect, caused by the operation of the
The fourth assignment of error is therefore sustained, and the judgment is reversed with a venire facias de novo.