William H. Moudy Manufacturing Co. v. Pennsylvania Railroad, 212 Pa. 156

William H. Moudy Manufacturing Co. v. Pennsylvania Railroad

212 Pa. 156 | Pa. | 1905

Opinion by

Mb. Justice Elkin,

This is a proceeding under the Act of March 27,1848, P. L. 273, to determine what damages, if any, were sustained by the appellee by reason of the taking of a strip of land owned by it, upon which to construct railroad sidings by the appellant company. The act provides, inter alia: “And after having made a fair and just comparison of said advantages or disadvantages, they shall estimate and determine whether any, and if any, what amount of damages have been sustained or may be sustained, and to whom payable, and make report thereof to the court.” It will be observed that the first inquiry to be made by the viewers under the express provisions of the statute is whether any damages have been or may be sustained by the land owner. This is the primary question to be considered in every such proceeding. If it be determined that damages have been or may be sustained, the next step in the inquiry is to ascertain and fix the amount thereof. This course of orderly procedure applies to the court and jury as well as the viewers. Where it is conceded by both sides that damages to some extent have been sustained, and all the witnesses so testify, exact compliance with this order of procedure may not be material, but where the right to any damages is contested, and some of the *160■witnesses have testified that none' have been sustained, failure to observe this rule is error if ’the complaining party has been injured thereby. In such .cases' the duty of definite and exact instructions to the jury rests upon the court. Sympathy for one side, or prejudice toward the other may lead to inequitable results unless the trial judge by a clear and concise statement of the law lays down correct rules as a measure of damages for the guidance of the jury. The rule applicable to such cases was announced by Mr. Justice Gibson nearly a century ago in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411, wherein it is said: “ The only safe rule is to inquire what would the property unaffected by the obstruction have sold for, at the time the injury was committed ? What would it have sold for, as affected by the injury ? The difference is the true measure of compensation.” This rule has never been departed from. It is the settled law of our state. It is true, incidental damages may sometimes be considered as bearing upon the question of depreciation in value under the general rule. The elements of disadvantage and burden imposed upon the land as a direct and necessary result of the location of the railroad upon it may be taken into consideration: Kersey v. Railroad Co., 133 Pa. 234. Such matters, however, cannot be considered as separate and distinct items on which to ascertain and assess damages. They can only be considered as affecting the value of the property before the land was condemned and after it was. appropriated for the use intended. The jury should be definitely-instructed to determine, first, what would the property have sold for before the entry, was made, and then what it would have sold for after the appropriation thereof, taking into consideration the expense and burden occasioned by the entry, -the difference between the selling value of the 'land before and after being the measure of compensation for the injury committed : Pittsburg, etc., Railway Company v. McCloskey, 110 Pa. 436; Pittsburg, etc., Railway Company v. Vance, 115 Pa. 325; Mahaffey v. Beech Creek Railroad Co., 163 Pa. 158.

The learned trial judge inadvertently, no doubt, failed to instruct-the jury in reference to the legal rule as a measure-of damages in this case. Two witnesses for the appellant having testified positively that the appellee did not suffer any damage, it was- error for the court-in-its charge to -the jury to assume *161that some damages should be allowed. It was the duty of the court to instruct the jury to determine, first, whether any damages had been sustained, and that question being answered in the affirmative, then to fix the amount thereof. The failure to observe this rule may or may not have resulted injuriously to the appellant. Inasmuch, however, as the verdict returned ■was for a very large sum of money for the comparatively small amount of land taken, we cannot say no injury was done the appellant thereby. ' This court has frequently held that a charge was inadequate which failed to present to the consideration of the jury a clear statement of the rules of law applicable to the questions involved: Tiety v. Philadelphia Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; Clark v. Union Traction Co., 210 Pa. 686.

While the charge of the learned trial judge was full, fair and complete in all matters pertaining to the general features- of the issue involved, it was clearly inadequate in the presentation of the exact legal rule for the measure of damages applicable to the case, and in other respects hereinbefore pointed out.

Judgment reversed and a venire de novo awarded.