Brennan v. Pittsburg & Connellsville Railroad Company, Appellant.
Railroads — Eminent domain — Witnesses • — • Competency — Cross-examination — Harmless error.
1. The fact that a witness in a land damage case may show bias, prejudice or interest will not warrant a court in refusing to hear him or in striking out his testimony, if he is fully competent to testify as to the value of land because of his general knowledge of land values in the neighborhood or his familiarity with the location, area, improvements and adaptability of the land in controversy. The credibility of such a witness is for the jury.
2. Where the qualifications of witnesses as to land damages do not depend upon the knowledge they had of the price paid by a railroad company for properties adjoining that in controversy, but on the other hand all testify to knowledge of other sales in the vicinity and to fa*229miliarity with the properties affected, the fact, developed in cross-examination, that they did have knowledge of the price paid by the company for adjoining properties will not render them incompetent.
3. The refusal to allow on cross-examination two questions to be propounded to an expert witness, relating not to the land in controversy, but to properties in another part of the borough, intended to test the accuracy of the witness’s knowledge, and properly admissible, is not reversible error, where otherwise the widest latitude was given and many other questions of a somewhat similar character were asked and answered.
Mr. Justice Mestbezat dissents.
Argued Oct. 28, 1910.
Appeal, No. 169, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1906, No. 108, on verdict for plaintiff in case of James P. Brennan v. Pittsburg & Connellsville Railroad Company.
Before Brown, Mestrezat, Potter Elkin, Stewart and Moschzisker, JJ.
Affirmed.
Appeal from award of viewers. Before Ford, J.
At the trial the jury returned a verdict for plaintiff for $53,000 upon which judgment was entered.
The court refused a new trial, Ford, J., filing the following opinion:
This is a proceeding to assess the value of certain lots or pieces of ground situate on Halket street in the first ward of the borough of Braddock, taken and appropriated by the defendant company under the right of eminent domain for the purpose of straightening, widening, enlarging and otherwise improving its line of railroad.
In October, 1905, and for some time prior thereto, the plaintiff, James P. Brennan, was the owner of three separate and distinct lots or pieces of ground, being lot No. 14, the northerly part of lot No. 16, and lots Nos. 18 and 19 in John Robinson’s plan of the subdivision of section 25 in J. W. Buchanan’s plan of Braddock field.
Lot No. 14 was in width forty feet on Halket street and extended in depth about 133 feet to an alley twenty feet wide, known as “Wood Alley;” the northerly part of *230lot No. 16 was distant about fifty-six feet south of lot No. 14, had a width of forty feet fronting on the northeasterly side of Halket street and extended in depth about 133 feet to Wood alley; lots Nos. 18 and 19 are contiguous and situate at the corner of Halket and Thirteenth streets, together having a width of 106.88 feet on Halket street and extending to Wood alley. Lots Nos. 18 and 19 are situate about forty feet south of lot No. 16.
The part taken and appropriated by the defendant company was the westerly half, or less than half, about sixty-two to sixty-three feet of each of the three parcels of ground, together with the right, title and interest of James P. Brennan in that portion of Halket and Thirteenth streets abutting thereon, and subject to the easement of the public in said streets.
Halket street was about fifty feet wide,, having upon it the two main lines of the defendant company’s railroad. The tracks extended along the street in front of and about fifteen feet from the west line of the Brennan properties. Between the Brennan properties and the railroad there was a paved side or foot walk in width about ten or twelve feet. Since 1905, the company has constructed its railroad occupying the sidewalk formerly along Halket street, and also plaintiff’s land taken for that purpose.
The verdict of the jury was for the plaintiff, and the defendant moves the court for a new trial, assigning as reasons: ...
1. The court erred in admitting the evidence of plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, as to the fair market value of plaintiff’s property.
2. The court erred in refusing to strike out the testimony of W. J. Holland and H. J. Learn, witnesses for the plaintiff.
3. Dr. G. H. McGarey, a witness upon behalf of the plaintiff, after having testified, in a conversation, said, “I have just been on the stand as a witness in the Brennan case and gave some pretty strong testimony, but *231when it comes to testifying between an individual and a corporation, I have no conscience.”
4. The verdict was against the law and the evidence and the charge of the court.
The reasons assigned will be considered in order:
1. The objections to the competency of each of the plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, being (a) that the witnesses did not possess such knowledge as would enable them to estimate the value of the property before and after its appropriation, and (b) their knowledge of the value of property in the vicinity of the Brennan property was of sales made and prices paid by the defendant company.
The test of the competency of a witness called to give an opinion in respect to the value of land is, that he has knowledge of the property in question, the extent and condition of the improvements and the uses to which it may be applied, taken in connection with the general selling price of lands in the neighborhood at the time.
The competency of a person to give an opinion under oath as an expert so that upon the preliminary examination he appears to have any pretensions to speak as such, rests in the discretion of the judge: Ardeseo Oil Co. v. Gilson, 63 Pa. 146. The value and weight of the opinion expressed being entirely for the jury: Lewis v. Water Co., 176 Pa: 230.
In the case of Hope v. Phila. & Western R. R. Co., 211 Pa. 401, it was held:
“To render a witness competent .... he should have such knowledge as would enable him to estimate the market value of the entire tract of land both before and after the construction of the road through it. Adhering to this rule of competency, the witness should disclose some knowledge of the location of the land, its area, quality and productiveness, the extent and condition of the improvements, the manner in which the road passes through the premises and the value of other lands *232in the neighborhood at or about the time of the appropriation of the land by the railroad company. If the witness has some familiarity with these facts, his testimony must go to the jury. The extent of his knowledge affects the weight of his testimony and not his competency.”
Of the witnesses whose competency is questioned, W. J. Holland was a resident and had resided in the borough of Braddock “all his life.” He is and has been engaged in the real estate and insurance business upon his own account for seven years, and theretofore as an employee of his father and uncle; G. H. McGarey is a physician, is and has been a resident of Edgewood for one year, and prior thereto had resided in the borough of Braddock, where he had practiced his profession for seventeen years and upwards; H. J. Learn is a merchant engaged in the dress goods business, his place of business and residence is in the borough of Braddock, where he had resided for sixteen years and upwards; George Weil Is an attorney at law, practicing at the Allegheny county bar, and is and for a number of years has been a resident of Braddock. He was largely interested in the placing of loans secured by mortgages upon real estate in the borough. In part his duty was to examine and appraise properties offered as security, necessitating inquiry respecting the prices at which property was held and sold. Edward M. Brackmeyer was a resident of and had resided in Braddock for thirty-seven years. He is engaged in the steamship, foreign exchange, insurance and brokerage business. S. C. Richards is an architect and had resided in Braddock for sixteen years.
Each of the witnesses testified that prior to October, 1905, they knew the Brennan lots or pieces of ground, were familiar with the area of the lots, the improvements thereon, and how affected by the construction of defendant’s road, had knowledge of the market value of properties and knew of sales and prices of real estate in that vicinity.
*233It is urged by counsel for defendant that the sales and prices testified to by certain of the witnesses were sales made to and prices paid by the defendant company.
In Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426, cited and approved in Hope v. Phila. & Western R. R. Co., 211 Pa. 401, Gordan, J., delivering the opinion of the court, said:
“Though his (witness’s) knowledge of the value of lands in that neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other purchases in the real estate market, yet he had some knowledge upon which to base an opinion and the value of that was for the jury.”
We are of the opinion that these witnesses were competent to estimate the value of the Brennan lots and to express an opinion as to the difference between the value of the lots before and the value after and as affected by the appropriation of a part of the lots by the railroad company.
2. Counsel for defendant moved to strike out the testimony of W. J. Holland for the reason that he had not shown sufficient knowledge of sales or of prices paid or asked for the property in the neighborhood of and similar to the Brennan property, further, that he bases his opinion on sales made to the railroad company; and of H. J. Learn for the reason that his opinion is based on the peculiarity of the location of the land, the uses to which it could be put, and sales of property located in other parts of the borough having no bearing on the market value of the Brennan property.
Mr. Holland had knowledge of sales made about the time of the appropriation and prices paid on property in the vicinity of the Brennan property, and testified that he knew of the sales of the McCredy property, the P. J. Brennan, the Petty, the Corado, the James McCune, the John Lowe, the Catherine Lowe, the McClelland, the Costello and other properties. Mr. Learn was the owner of real estate, and in 1905, had purchased property in the *234borough. He knew of the asking and selling prices of property in the vicinity of the Brennan property, and referring to the time of appropriation, testified, “I am familiar with some selling prices and have heard of some asking prices. Thát made me familiar with them.” He knew of the Worthington and the Robinson sales, both to the railroad company, and the prices at which other properties were held for sale.
Mr. Holland and Mr. Learn based their opinion upon their knowledge of values, the size and location of the properties, the then use and the uses to which the properties were adapted. The motion to strike out was properly refused.
3. It appears from the testimony taken and filed in support of the rule for a new trial that on the day of the trial, after testifying, Dr. G. H. McGarey met George C. Watt in the corridor or hall of the courthouse. The trial and testimony given by Dr. McGarey was referred to and commented upon. A few days later Paul D. Remington had a conversation with Dr. McGarey in which Dr. Mc-Garey referred to his testimony. There is a conflict in the testimony taken on the rule in relation to what was said by Dr. McGarey in the conversation with Mr. Watt and with Mr. Remington. It is not necessary to determine the language nor import of the language used by the witness, Dr. McGarey.
Evidence which merely impeaches the credibility of a witness cannot be successfully urged as the ground for a new trial.
In the case of Com. v. Laird, 14 York, 128, Mr. Justice Stewart held that three witnesses testifying that a material witness for the commonwealth had received $10.00 for testifying was not a sufficient cause for a new trial.
In Com. v. Yot Sing, 7 Kulp, 349, Mr. Justice Rice refused a new trial where the principal witness made affidavit that he had perjured himself on the trial, and three witnesses testified to like effect.
*235In Com. v. Flanagan, 7 W. & S. 415, the defendants alleged that they were entitled to a new trial because several witnesses had since the conviction of the prisoners, either admitted that they did not testify to the facts truly, or made statements inconsistent with the evidence given on the trial, and it was held that “the rule of law is that the testimony must go to the merits of the case and not be merely for the purpose of impeaching the testimony of the witnesses. For newly discovered evidence discrediting witnesses who testified on a former trial, a new trial is never granted.”
The statements made by Dr. McGarey to Mr. Watt and to Mr. Remington, if made in terms as by the witnesses for the defendant testified, tended to impeach his credibility and affect the weight to be given to his opinion as to values.
4. It is contended by the defendant that the verdict of $53,000 for the plaintiff is excessive.
The defendant company filed its bond October 21, 1905, and shortly thereafter entered upon the land condemned.
There is a marked difference in the value of the property before and after the widening of the railroad between the estimates or opinions of the witnesses for the plaintiff and for the defendant. The highest value shortly before the appropriation, as given by a witness for the plaintiff, was $158,848; by a witness for the defendant, $34,430. The highest value immediately after and as affected by the appropriation, as given by a witness for the plaintiff, was $42,239; by a witness for the defendant, $15,851.
It has uniformly been held that the court will not grant a new trial because the verdict is too high when the court cannot say that in no view of t-he case can it be justified. We have carefully reviewed and considered the testimony. Disregarding the estimate of Dr. McGarey, the highest estimate of the depreciation upon the part of the plaintiff is that of W. J. Holland, who testified that the de*236preciation was $90,172: upon the part of the defendant, the highest estimate of the depreciation was $18,591.
January 3, 1911:
The jury evidently weighed the opinions as to values of the witnesses for both the plaintiff and defendant,' and ascertained the amount of the damages from a fair consideration of all the facts and circumstances in evidence. A careful review of the testimony does not convince us that the verdict of the jury should be disturbed.
Now, July 14, 1910, the motion for a new trial is discharged.
Errors assigned were (1-9) various rulings on evidence,' quoting the bill of exceptions.
Edward T. Noble, with him Johns McCleave, for appellant,
cited: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Michael v. Pipe Line Co., 159 Pa. 99; Friday v. R. R. Co., 204 Pa. 405; Stevenson v. Coal Co., 201 Pa. 112; Cobb v. Boston, 112 Mass. 181; Chicago, etc., R. R. Co. v. Scott, 225 Ill. 352 (80 N. E. Repr. 404); Peoria Gaslight, etc., Co. v. Terminal Ry. Co., 146 Ill. 372 (34 N. E. Repr. 550); Henkel v. R. R. Co., 213 Pa. 485; Gorgas v. R. R. Co., 2.15 Pa. 501.
Edmond Englert, with him Thomas M. & Rody P. Marshall, for appellee,
cited: Pittsburg, etc., R. R. Co. v. Robinson, 95 Pa. 426; Hope v. R. R. Co., 211 Pa. 401; Galbraith v. Phila. Co., 2 Pa. Superior Ct. 359; Marko-witz v. R. R. Co., 216 Pa. 535.