Summary
In Colorado Mortgage Co. v. Rees, 21 Colo. 435, 42 P. 42, a damage suit for injuries sustained in an elevator in an office building, though the expression "common carrier" is not there used, the owner or operator of the elevator was held under obligation to use "that high degree of care that the business demands" (p. 440) and the "utmost care and diligence"; in other words, a degree of care similar to that generally imposed on common carriers.
Summary of this case from Davis v. BankOpinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Santa Barbara County and from an order denying a new trial. W. B. Cope, Judge.
COUNSEL:
The testimony shows that the establishment of the railroad had a beneficial effect upon the value of property in the city, and it was erroneous to allow evidence as to how much greater the rise in value of plaintiff's lot would have been if the road had gone through the town upon some other street. (Muller v. Southern P. Branch Ry. Co ., 83 Cal. 240, 243, and cases cited; also Chicago etc. R. R. Co. v. Francis , 70 Ill. 238; Eberhart v. Chicago etc. Ry. Co ., 70 Ill. 347; Page v. Chicago etc. P. Ry. Co ., 70 Ill. 324; Chicago etc. R. R. Co. v. Hall , 90 Ill. 42; City of Denver v. Bayer, 7 Col. 113; Hopkins v. Western P. R. R. Co ., 50 Cal. 190; Hogan v. Central P. Ry. Co ., 71 Cal. 83.)
R. B. Canfield, for Appellant.
B. F. Thomas, for Respondent.
Plaintiff was entitled to recover damages for the taking of her property without consideration for benefits done by the corporation to the plaintiff's land in mitigation of the damage. (Reardon v. San Francisco , 66 Cal. 493; 56 Am. Rep. 109; Pacific Coast Ry. Co. v. Porter , 74 Cal. 261; Muller v. Southern P. Branch Ry. Co ., 83 Cal. 240.) Damages may be recovered by one who owns a lot abutting on a public street, upon appropriation of the street by a railroad company, which depreciates the value of the abutting lot. (Webber v. California etc. R. R. Co ., 51 Cal. 425; Williams v. New York Cent. R. R. Co ., 16 N.Y. 97; 69 Am. Dec. 651; Story v. New York Elevated R. R. Co ., 90 N.Y. 122; 43 Am. Rep. 146; Bloomfield etc. Gaslight Co. v. Calkins , 62 N.Y. 388; Uline v. New York etc. R. R. Co ., 101 N.Y. 98; 54 Am. Rep. 661; Henderson v. New York Cent. R. R. Co ., 78 N.Y. 433; Pennsylvania etc. R. R. Co. v. Walsh , 124 Pa. St. 544; 10 Am. St. Rep. 611; Kane v. New York etc. R. R. Co ., 125 N.Y. 164; Hughes v. Metropolitan etc. Ry. Co ., 130 N.Y. 14.) The abutting owner has the right to share in the advance of property resulting in the construction of the railroad. (Winona etc. R. R. Co. v. Waldron , 11 Minn. 515; 88 Am. Dec. 100; Meacham v. Fitchburg R. R. Co ., 4 Cush. 295; Pappenheim v. Metropolitan etc. Ry. Co ., 128 N.Y. 449; 26 Am. St. Rep. 486.)
JUDGES: Searls, C. Belcher, C., and Haynes, C., concurred. Temple, J., Henshaw, J., McFarland, J.
OPINION
SEARLS, Judge
Plaintiff, the respondent herein, was the owner of a block of land in the city of Santa Barbara, California, bounded by four of the public streets of said city, along one of which, to wit, Gutierrez street, the defendant (a corporation) constructed, in 1887, a railroad for the transportation of freight and passengers. This action is brought to recover damages sustained by plaintiff to her premises for the erection, maintenance, and operation of such railroad.
The answer of defendant put in issue the material allegations of the complaint; and for a further defense set up a grant to it by the municipal authorities of Santa Barbara of the right to lay, maintain, and operate its railroad upon, over, and through said Gutierrez street; and averred that the railroad was constructed and operated in a usual and proper manner and in conformity with the requirements of the ordinance, and that the roadbed was made to conform as near as might be to the natural surface of said Gutierrez street and to the official grade thereof.
The cause was tried by a jury and a verdict for $ 1,400 rendered in favor of the plaintiff, upon which judgment was entered.
Defendant appeals from the judgment and from an order denying its motion for a new trial. The first error assigned by appellant is based upon the action of the court in refusing to strike out the testimony of A. O. Perkins, a witness on behalf of plaintiff.
The witness upon his examination in chief testified in relation to the value of plaintiff's lot of land and the injury thereto by the construction of defendant's railroad along the street adjoining it, substantially, that he was a real estate agent, and knew the block of land upon which Mrs. Abbott resided, bounded by Gutierrez, Haley, De la Vina, and Bath streets. Just prior to the time the railroad commenced work in August, 1887, the block could have been sold for $ 15,000. After the road was constructed and put into operation along the front of the property on Gutierrez street the lot was worth $ 3,000 less. For about half the frontage on that street the grade was raised twelve to fifteen or eighteen inches, so that the lots would have to be filled to grade; and taking into account that a railroad in front of that property naturally depreciated it, he did not think it worth so much by $ 3,000 as before the road was built.
The inconvenience and danger from the construction and operation of a railroad are considerations which naturally operate upon the minds of men in purchasing for a home. The lot is in the residence portion of the city and outside of the business portion.
Upon cross-examination the witness said he considered the block of land worth $ 15,000 just prior to August 1, 1887, just before it was known the railroad was going through that street.
There had been a marked improvement in prices of lands, a "regular boom"; could not tell just when it started; prices ruled high; whether [42 P. 1100] there was any marked improvement in prices before it was known the railroad was coming he could not say, as he had not given it a thought; San Francisco people and others came in and purchased land, which influenced people in purchasing. The cause of the boom might have been one thing or another, or a combination of things.
Did not know that the coming of the road was the only cause. The fair value of the property just before the railroad company entered upon that portion of the street to construct its road was, according to his estimate, $ 15,000. His estimate of the value was placed at the time when it became known the road would be constructed on that street. When that fact was known it declined.
" After it was understood and known that the railroad was going there (through Gutierrez street), then the property assumed a market value depending on that fact.
Before that, and when it was known the road was coming to Santa Barbara, property began to stiffen up in town. It helped to increase values, and, with other causes combined, helped raise the price of property.
The witness further explained that when the city council granted the right of way through Gutierrez street the price of property on that street was depreciated and continued so until the road was completed, although the road did not become a fixed fact until the ties and rails were down.
Counsel for defendant then asked the witness the following question:
" Mr. Perkins, your estimate of the difference of the value of this property before the road was constructed and afterward, which you have made at the sum of $ 3,000, I will ask you if that is not in fact based upon the consideration of what the property would have been worth if the road had gone through the town, but on some other street; is not that a fact?" To which the witness answered: "Why, certainly, that is the damage to it; that is the cause of the damage; if the road had gone anywhere else, it would have benefited the property, in my judgment."
At the request of the witness the last question was again read to him, and he then stated that he had not quite understood it, and that he intended to say that the road would naturally benefit the lot if it ran on another street, but that was not the basis upon which he made his statement of damages at $ 3,000; that this estimate of the difference in value before and after the road was built might have been based partly upon the worth of the property had the road passed through town upon some other street, and partly upon other considerations, and that he could not say to what extent his estimate was upon each several consideration.
The contention of appellant is that this evidence should have been stricken out upon his motion, and such contention is supported by reference to Muller v. Southern P. Branch Ry. Co ., 83 Cal. 240, and cases there cited.
That action was brought to recover damages for a strip of land taken by this same defendant upon which to construct its railroad and for damages to an abutting lot not taken, situate on this same street, viz., Gutierrez street, in the city of Santa Barbara.
The court held among other things:
1. That as to damage to the lot not taken, the difference between the value of the lot when the defendant entered to construct its road and the value when the road was completed was the measure of damages.
2. At the trial defendant (the railroad company) called as a witness one Barker, who testified as to the value of the abutting lot before and after the construction of the road. Upon cross-examination counsel for plaintiff was permitted, against the objection of defendant, to put the following question to the witness:
" What would the property be worth if the railroad had been constructed on Montecito street" ? The answer was: "I think that the lot or quarter of a block, irrespective of improvements, would have been worth about $ 600 more if the railroad had gone on some other street." (Transcript on Appeal, fols. 259-64.)
Defendant also requested the court to instruct the jury in that case that, "in estimating the damage to the portion of plaintiff's land not taken by the railroad, you must not consider what the value of the land would have been if the railroad had been constructed through the city, but along some other street than Gutierrez street."
The court refused to so instruct, and the admission of the evidence and refusal to instruct the jury as above indicated was assigned as error.
The court, speaking through Thornton, J., said: "We cannot see on what view or principle this evidence was admitted. The damage to plaintiff must be estimated on the actual facts of the case, not on any speculative theory of what might have been the result if something had occurred which in fact did not occur.. .. . The damage allowed is not a failure to realize a profit which under another state of matters might have been realized, but the loss actually suffered, and the defendant is only called on to make compensation for that lose," etc., and the court held that the admission of the evidence and the failure to instruct as requested were both erroneous, and the judgment in favor of plaintiff was reversed.
The rule as to the measure of damages enunciated is in consonance with the adjudicated cases in this state and elsewhere.
If the decision is open to criticism, it must be upon the ground that under the wide latitude permitted on cross-examination the question propounded to defendant's witness was admissible for reasons other than those mentioned by the learned judge who wrote the opinion.
We have no disposition to criticise the opinion, and shall not discuss it.
The case at bar presents the question in a form so entirely different as to differentiate it from that case.
Here the witness testified in chief as to the market value of [42 P. 1101] the block of land before the railroad was constructed, and as to such value after the road was built through the street, and had described the changes and inconveniences occasioned to the use of the street by the cut and fill thereon, and had fixed the reduction in the market value at $ 3,000.
It is true that the witness in the course of his examination, and in answer to some of the questions on cross-examination, made statements from which it might be inferred that the question of the value of the plaintiff's land, had the road been built on another street, entered into and became an element in his calculation of market value.
An examination of his whole testimony, however, tends to convince us that he did what witnesses very often do, viz., stated facts quite accurately and then gave wrong reasons for their existence.
Conceding, however, that the cross-examination was proper, and that the effect of such examination was to show that the estimate of the value of the property was based in part upon its supposed value if the road had gone elsewhere, and it simply goes to the value of the testimony and not to its admissibility, and, while a proper subject for comment before the jury and for instructions from the court, does not require the court to strike out the whole testimony of the witness upon the given point.
The court at the instance of defendant did instruct the jury among other things that "in estimating the damage to the premises described in plaintiff's complaint you must not consider what the value of the land would have been if the railroad had been constructed through the city but along some other street than Gutierrez street."
A like error is assigned upon a like motion to strike out the testimony of a like character elicited under like circumstances from the witness Edward Harper. The rulings of the court in these cases do not call for a reversal. Like considerations apply to the error assigned upon the ruling of the court in refusing the motion of counsel for defendant to strike out the testimony of its own witness.
The evidence was sufficient to sustain the verdict, and the latter, in view of all the evidence, was moderate in amount. There are some other errors assigned in the record, but as they are not urged by appellant we need not comment upon them.
The judgment and order appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.