City of Chicago v. Jackson , 88 Ill. App. 130 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

The only errors assigned which are argued by counsel for appellant in their briefs, relate to rulings of the trial court in admitting or excluding evidence and the refusing of one and the giving of one of the instructions.

Evidence was admitted tending to show what the extent of traffic was upon the east sidewalk of West Fortieth street compared to the traffic on the west sidewalk, and to show that by reason of the change in the grade, traffic had been diverted from the east to the west side of the street. This testimony could only be proper in so far as it was of necessity brought out in discovering the elements upon which the experts based their opinions. It was not competent to show such temporary diversion of traffic as an element proper for the jury to consider in assessing damages. Homann v. City, 140 Ill. 226.

And so far as its admission may be said to have been for that purpose, it was error. It was sought to cure the error indicated by an instruction given to the jury by the court, by which they were informed that the evidence as to traffic could only be considered for the purpose of arriving at a conclusion as to whether access to the premises of appellee had been interfered with by the change of grade. This is the instruction, the giving of which constitutes one of the errors assigned and argued. We are of opinion that the instruction failed to cure the error. The matter of the physical condition of the street and sidewalk, and lot and building, were all capable of direct and certain proof, without resort to proof dependent upon the action of the traveling public.

Whether access was in fact cut off or impeded could be determined by a showing of the physical condition through witnesses, and by the view of the premises which was had by the jury, without looking to the actions of persons passing upon the street and attempting to analyze their motives for taking the one sidewalk or the other.

Another error complained of was the admitting of evidence as to the number of trains which stopped at the station at West Fortieth street, near the property in question, before and after the change of grade. This presented an element which the jury could not properly consider in assessing appellee’s damages. Kotz v. City of Chicago et al., 70 Ill. App. 284.

We are of opinion that there was no error in admitting evidence as to the question of the city sewer and the difficulty which would result from the change of grade in connecting a basement in any building upon appellee’s lot with such sewer. It is difficult to see why this element of damage was not one proper for consideration.

We do not regard the ruling of the court as an abuse of discretion when it limited the experts to testifying to the effect of general depreciation in value of near by property.

The court was not bound to let the witness travel over the entire city in giving estimates as to such depreciation. Some limitation was proper. The degree of the limitation was a matter largely of discretion. We do not think the discretion was abused when the court confined the expert to a territory of three blocks about the property in question.

Counsel for appellee were permitted, over objection, to cross-examine one expert as to his knowledge of the number of tenants in a building opposite to the property of appellee. It was not proper as a measurement of the damage to appellee’s property. M. W. S. E. R. R. Co. v. White, 166 Ill. 375.

It is complained that the court erred in excluding testimony of one witness as to the general effect of the improvement upon other property. But the witness was permitted to testify that the effect had been beneficial.

There was no error in refusing to instruct the jury to find for the defendant.

These are the only complaints made as to matters of procedure.

The only remaining question to be considered is as to whether the errors above indicated are such as should lead us to reverse the judgment and remand the cause for another trial. We are of opinion that they are not.

It is beyond dispute that appellee’s property has been put to a disadvantage and damaged by having the sidewalk and street in front of it lowered, the one to the extent of four feet and the other to the extent of eight feet. No amount of expert evidence would be likely to ever convince any jury that this did not effect a damage to the property. The witnesses who testify to values and extent of injury, do not differ widely, except in the case of those who testify that there was no damage. Coe testified to damages amounting to $3,500; Bogue estimated the damage at from $3,500 to $1,000; Snyder at $3,400; and Cushing at $4,000. The witnesses who testified simply to the cost of adjusting the building to the new grade of the street, fixed the cost at different sums; Marble at $2,539.86, Holman at $2,543, and Cook at $2,529.35. Mace, a witness called by the city, testified as follows:

“Q. Mr. Mace, in your judgment would it be the best thing for Jackson to lower his building lower than the sidewalk down to the street level ? ”

“A. Well, I certainly would like it, if I owned it, that way, similar to across the street.”

This witness testified that to lower the building to the sidewalk level only would not be “ a feasible changing of the building,” and that to lower it to.the street level, four feet below the sidewalk, which was the only feasible adjustment to the new conditions, would cost $2,080.40.

We think it apparent from all the evidence that the property of appellee has been damaged, and that the verdict assessing that damage at $2,000 was a fair and just ascertainment. Where substantial justice has thus been accomplished through the trial, and where it seems obvious that no decision more favorable to the appellant would result from another trial, it is not necessary, nor' is it proper, that the judgment should be reversed because of the errors in procedure above indicated. Newkirk v. Cone, 18 Ill. 449; Dishon v. Schorr, 19 Ill. 59; Schwartz v. Schwartz, 26 Ill. 81; H. E. F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; The Penn. Co. v. Stoelke, 104 Ill. 201; The L. C. & M. Ass’n v. Zerwick, 77 Ill. App. 491; I. & I. S. Ry. Co. v. Wilson, Id. 608.

The judgment is therefore affirmed.