Boston & Worcester Railroad v. Old Colony & Fall River Railroad , 85 Mass. 142 ( 1861 )

Bigelow, C. J.

The exceptions in this case are all founded on rulings of the court relating to the competency of evidence offered at the trial. In deciding upon them, it is to be borne in mind, that it is the duty of the party alleging exceptions to show that some error has been committed in matter of law by which he is aggrieved; and that, if it is left doubtful on the statement of the case in the exceptions whether any erroneous ruling to his prejudice has been made, it is the duty of this court to presume that the decision of the court below was correct.

1. The testimony of Mr. Quincy concerning sales of land on the South Cove in the year 1847 is certainly open to question, as being irrelevant and immaterial to the issue. It is difficult to see how the value of upland situated at a considerable distance from the premises in controversy could have had any legitimate bearing as tending to prove the value of the wharf property, which the jury were to estimate in making up their verdict. There can be no doubt that evidence of sales of land in the vicinity of that belonging to the plaintiffs, especially if devoted to similar uses, would have been competent. Davis v. Charles River Railroad, 11 Cush. 506. Wyman v. Lexington & West Cambridge Railroad, 13 Met. 316. It is the apparent dissimilarity of the property and of the uses to which it was appropriated, as well as its distance from that which was the subject of the present controversy, which renders the admissibility of the evidence questionable. But on looking at the statement in the exceptions, relating to the introduction of this evidence, it appears to us that sufficient facts are not set forth to make it clear that the evidence was erroneously admitted. Without intending to say that it was competent, we are of opinion that it does not distinctly appear' to have been so irrelevant as to warrant us in deciding that its admission is a good cause for setting aside this verdict.

2. The same remark is true of the evidence which was admitted concerning the kind and amount of business done by the plaintiffs at their wharves. In one point of view this testimony was competent. As tending to prove the interruption of business at the plaintiffs’ wharves by cutting off frequent and ready access to them by means of the constant-passing of trains, it had a direct bearing on the issue before the jury. The nature and extent of the easement claimed by the defendants, and the kind and amount of business transacted on the premises by the plaintiffs, were proper elements for the consideration of the jury, in estimating the damages done to the estate by the maintenance of the railroad over it. Such evidence tended to prove the actual effect of the location of the road upon the value of the property. On the other hand, it was not open to the plaintiffs to offer evidence of the inconvenience and interruption occasioned to their general business as a railroad corporation by the location of the defendants’ railroad. This point was determined by this court when the case was before us on a previous bill of exceptions. 12 Cush. 611. On examining the statement of this part of the case, we are not sure that the true distinction was kep^ clearly in view in the admission of evidence at the trial, nor that it was fully explained to the jury in the instructions of the court. But as we are not satisfied that any error was committed in allowing incompetent evidence to be laid before the jury or in the misapplication of facts in proof, we are constrained to say that the defendants fail to sustain this exception.

3. The testimony of Mr. Amory was clearly incompetent on two grounds. In the first place, it did not appear that he had had any such experience as would qualify him to testify as an expert in relation to the subject matter- concerning which his opinion was asked. He does not say that he had acquired any actual practical knowledge of the value of real estate subject to public easements. Nor does it appear that he had ever known of sales of such property, or that his opinions had ever been the basis of any adjustment of damages, where property had been taken for a public use. His ability to speak on the subject was founded wholly on his own theories and judgment. His opinion was purely speculative and not practical. He therefore had no peculiar means of acquiring information in relation to the subject inquired about, and could give no better opinion concerning the matter in controversy than any other person of sound judgment who had made it a matter of thought and reflection. But, in the next place, we are of opinion that the inquiry put to the witness was one which, from its nature, could not be answered by any one as an expert. The value of the reversion of' land over which a railroad is located depends on the length of time that the public easement over it will continue. This is the essential element on which the whole inquiry must turn, and in relation to it there has been no experience on which any satisfactory opinion can be based.

4. For reasons similar to those already given for the exclusion of the evidence of Mr. Amory as an expert, we are of opinion that the testimony of Mr. Howe was incompetent. It does not appear that he had any peculiar means of knowledge as to the effect of constructing a railroad over wharves similar to that owned by the plaintiffs. It is true that the witness had earned on business as a dealer in lumber on a wharf in the vicinity for. a number of years, and had been concerned in the management of railroads for a long period. But it does not appear that he had ever known of the use or occupation of a wharf by a railroad similar to that which is shown to exist in the present case. He therefore had no practical experience on the subject concerning which his opinion was asked, and could form no better judgment in relation to it than any other intelligent man, or than the members of the jury. The opinion of witnesses on the substance of the issue is always dangerous, and never to be admitted except where the subject is one beyond the knowledge and experience of common men, and in such cases no testimony is to be given except by those who are shown to possess peculiar means of forming an intelligent and well instructed judgment. In the opinion of the court, Mr. Howe did not possess the necessary qualifications to entitle him to testify as an expert, and on this ground the order must be,

Exceptions sustained.