Hoffman v. Bloomsburg etc. R. , 143 Pa. 503 ( 1891 )

Opinion,

Mr. Justice Green:

We are not able to agree with the learned court below in the interpretation given to the agreement signed by the plaintiff, in relation to the construction of the defendant’s road on his land. It is in the following words, viz.:

“ I hereby agree in behalf of the railroad to be constructed along the Big Fishingcreek, from a point near its mouth and following its general course to Cole’s creek, thence, by the most eligible route, along the gorge of its eastern branch into Sullivan county, to connect with the State Line & Sullivan Railroad, to be extended to the state line at or near Waverly, that I will release to the company which undertakes to construct such road, the right of way of lawful width through my land in Orange township, Columbia county, Pennsylvania; the damage to be assessed when the road is located, and the amount of said damages to be paid in stock in said railroad. Cost of fencing not included in damages, provided no damage is done my buildings, race, or water-power.

“ Witness: John W. Hoffman.”

“ H. J. Conner.”

The learned court below instructed the jury that the proviso at the end of the paper related to the whole agreement, and not merely to the cost of fencing; and therefore that, if the jury found that no damage was done to the plaintiff’s buildings, race, or water-power, they could find that the general damage done by taking the land was payable in stock; otherwise, “ the damage would be in dollars and cents, to be paid in cash.” We cannot so read this paper. We can only judge of its meaning by the plain reading of its words. In the photographic copy of the paper, as in the printed copy, the word “ cost ” in the final sentence, is the beginning of a new and independent sentence, dissociated from the one preceding, and it reads: “ Cost of fencing not included in damages, provided no damage is done my buildings, race, or water-power.” The clear meaning of these words is that the cost of fencing shall not be included in the damages, if no damage is done to the buildings, race, or water-power; that is, if no damage is done to the buildings, race, or water-power, no damage is to be allowed for the cost of fencing. This is the natural construction and meaning of the words. But the court below held that the cost of fencing was to be “ payable in money value,” and that the words, “provided no damage is done my buildings, race, or water-power,” did not relate to the cost of fencing, but did relate to the damages mentioned in the preceding sentence. That sentence is in these words: “ The damages to be assessed when the road is located, and the amount of said damages to be paid in stock in said railroad.” What damages? Manifestly, “ the damages,” all the damages, resulting from the location and construction of the railroad through 'the plaintiff’s land. This appears by the preceding sentence, “ That I will release to the company which undertakes to construct such road, the right of way of lawful width through my land in Orange township, Columbia county, Pa.” Immediately following is the provision for assessing the damages, in the sentence above quoted. Certainly the words “ the damages ” in that sentence mean all the damages. There is no distinction between damages arising from the taking of the land and those which arise from injury to the buildings, race, or water-power. But the plaintiff was willing to waive any claim to damages for cost of building fences, if no damage was done to his buildings, race, or water-power, and says so in the final sentence. We are quite unable to read the paper in any other way than this, and hence find that the court was in error in the reading adopted in the charge.

But the appellee contends, now, that the appellant is not at liberty to raise this question, because one of the counsel for the appellant on the trial admitted that if the water-power was damaged, the defendant was liable to a money assessment in this suit. Of course, if a litigant party to a suit asks the trial court to take a certain view of a contested question, and the court does so at his request, he cannot be heard to assign such action of the court as error. This was what was done in the cases cited by the appellee upon this subject. In Benson v. Maxwell, 105 Pa. 274, we held that where a party requests the court to instruct the jury in a particular way, and the court charges substantially as requested, he cannot afterwards assign such instruction as error. And in Ritter v. Sieger, 105 Pa. 400, we held that a party litigant cannot complain if the court below submits his case to the jury from the point of view from which he himself presented it to the court, even if such point of view be erroneous. In both these cases the action of the court below was taken at the express instance of the complaining party, and we decided that he could not be heard to assign such action for error. But we find nothing of that kind on this record. There was no request by the defendant to the court to charge that the proviso of the license was limited to the cost of fencing, or that the agreement to take stock in payment for damages done by the location and construction of the railroad, was inapplicable if damage was done to the buildings, race, or water-power of the defendant. All that is alleged in support of the appellee’s argument, on this subject, is a verbal statement by one of the counsel for the appellant, made on the trial, to the effect that if the water-power was injured, the damage was to be a money assessment. ' Upon looking at the record of the bill of exceptions, we find that the written agreement signed by the defendant had been offered in evidence, and one objection to it overruled, when some additional testimony was taken to connect the plaintiff with it, and his knowledge of its acceptance by the defendant. Thereupon, one of the counsel for the plaintiff requested defendant’s counsel to state the object of the offer, to which one of the counsel replied by saying: “ The object is to show, first, that the railroad company entered by consent of the defendant (plaintiff ?) upon his premises to construct its line of road; secondly, that there was an agreement between the parties for the assessment, voluntary assessment, of any damages that might be occasioned to his property, and for the payment in capital stock of the company. We do not question that if the water-power is damaged, the defendant under that agreement is liable to a money assessment in this snit. We do not deny that if the water-power is injured, the damage is to be a money assessment in this suit.”

By the court: “Merely remarking that we think the offer is proper, we overrule the objection, and admit this release or paper without any further comment at this time, and give the plaintiff a bill.”

It is manifest that the paper was admitted in evidence without any reference to the question of its construction, and also that the defendant’s'counsel could not have meant to surrender the whole question of the manner in which the damages were to be paid, because a part of the offer, as he stated it, was to show that the damages were to be paid in stock of the company. What he said in addition to that was that they did not deny that if the water-power was injured the damage was to be a money assessment. As we understand this, the counsel meant that, if the water-power was damaged, that damage was to be payable in money. But that is a very different thing from admitting that the whole of the damage arising out of the location and construction of the road was to be payable in money. We do not agree with the defendant’s counsel in his understanding of the proviso clause of the agreement, but that would not help him if he had given up the whole question. We do not understand him to have done so, and therefore hold that he is at liberty to maintain the second assignment of error; and we sustain the assignment, because we think the learned court below was in error in its interpretation of the paper in question. But, while we sustain this assignment, it is on the bare question of the interpretation of the instrument only. We do not assume to decide whether there are facts in the case which disable the defendant from taking advantage of the provision for payment in stock. That subject is not before us under any assignment, and, without intimating whether there are any such facts, we simply say that subject is not considered.

We sustain the tenth assignment, because we do not think the agreement prohibited the defendant from interfering with the water-power and race, but only provided that the cost of fencing should not be included in the damages, if no damage was done to the buildings, race, or water-power. But, of course, we do not mean to say that damage to buildings, race, or waterpower is not to be considered by the jury. Under the general law, all the disadvantages arising from the location and construction of the road are to be taken into account in estimating the value of the whole property before the road was built and after it was finished.

What was said by the court in reference to the possible damage to buildings by fire, from the ordinary operation of the railroad without negligence, was in accord with the decisions of this court upon that subject, and we therefore do not sustain the first, seventh, eighth and ninth assignments. The fact that specific evidence was not given in relation to damage from fire does not exclude that subject from consideration, when it was shown conclusively, that, in point of fact, there were several buildings on the premises, and their respective proximity to the road was given in evidence. Of course, the subject could only be considered in the general way of estimating the value of the whole property before and after the building of the road, and not at all as an object of specific allowance. And this is the way it was presented by the court in the charge and answers.

We do not think there is any merit in the third assignment. The counsel merely presented to the jury an illustration of a physical fact which spoke for itself. The jury simply saw the natural and self-evident fact, that a column of water higher than another column, but of the same dimensions otherwise, would discharge itself with more force than the lower column. It cannot be doubted that the counsel had a perfect right to contend in argument that such would be the case, and we can see no good reason why he could not show the jury the actual natural occurrence in support of his argument. It was an illustration merely, and not an experiment.

We are inclined to sustain the fourth, fifth and sixth assignments, for the reason that while the court stated, in the main correctly, the proper functions of the jury, after a view of the premises, we think somewhat more license was allowed to the jury in the direction of substituting their own opinion for that of the witnesses, than is consistent with our recent decisions. This is rather more manifest in parts of the charge which are not assigned for error than in those that are, but the same idea is followed up and practically repeated in the latter portions. For instance, the court said to the jury: “But it is the duty of the court to say to you that such opinions are subject to the qualification that the opinions of witnesses are not binding upon you, but are persuasive merely; if you are of a different opinion, you may find according to your own opinion.” Then, immediately following is the language contained in the fifth assignment, and the inference which the jury may have drawn, or which it was possible for them to draw from this part of the charge, is that they might substitute their own opinion for that of the witnesses, if they saw fit to do so. The vice of the charge is in contrasting the opinion of the jury with that of the whole body of the witnesses in a collective sense, and that would be error. Probably the court did not mean to be so understood, but the language warrants such a conclusion. Of course, in one sense it is true that the jury is not bound by the opinions of witnesses on such questions; that is, of some witnesses, as where extravagant and unreasonable estimates are given. But there are in all cases the estimates of other witnesses of a very different kind; and among these, and especially where there has been a view, it is not only the right, but the duty of the jury to discriminate, and to form the best judgment they can as to the real amount of the damages. This will doubtless involve the rejection of some or much of the testimony, and that is within the right of the jury; but yet some of the language of the charge seems to authorize the substitution by the jury of their own opinion for that of the witnesses regarded in a mass. In one of the most recent cases, Flower v. Railroad Co., 132 Pa. 524, the court below charged: “ You are only permitted to view the land, that you may better understand the testimony. The value of the land you are to ascertain from the witnesses.” Referring to this, we said: “We see no error in this. The jurors were sworn to render a true verdict according to the evidence. It was never intended that the view of the jury should be substituted for the evidence, and that they should make up their verdict from the view in disregard thereof. The object of the view is, as was correctly said by the learned judge, to enable them the better to understand the testimony; to weigh conflicting testimony; and, thus aided, to arrive at a sound and just conclusion.” We are of opinion that the charge of the learned court below, in the present case, is obnoxious to this ruling in the three assignments of error we are now considering, and therefore they are sustained.

The eleventh assignment is sustained for reasons already stated. The twelfth assignment is not sustained. The matters discussed by the appellant under this assignment are proper for the jury, but they do not involve any matters of law with which we can interfere.

Judgment reversed, and new venire awarded.