Hyde v. City of Fall River , 197 Mass. 4 ( 1907 )

BRaley, J.

In Hyde v. Fall River, 189 Mass. 439, it was held that the petitioners could recover for any direct and specific damage caused to their estate by the erection and maintenance of the embankment on the opposite side of the street, but for any inconvenience and injury arising from the discontinuance of a portion of the street as a public way, their damage being of the same kind even if greater in degree than that of the general public, there was no remedy.

At the second trial the petitioners introduced evidence that the rental and present value of the premises as a whole had been very appreciably diminished by the changes wrought through the erection of the embankment and connecting bridges. The changes made, including the discontinuance of a portion of the street, were part of a general plan for the abolition of certain grade crossings, and the respondent, against the objection, but without an exception, of the petitioners, was allowed in cross-examination of the petitioner’s expert witnesses to inquire whether the decrease in the volume of travel by the elimination of the grades in their judgment had not affected the market value of the estate. But, if regarded either as an effort to ascertain the elements of damage upon which the opinion of the various witnesses was based, or as bearing upon the contention that no damage whatever had been suffered except that which arose from the discontinuance alone, the extent to which the cross-examination should be pursued was within the sound discretion of the presiding judge. It would seem at first that a similar latitude justly should have been permitted in the questions asked in cross-examination of the respondent’s witnesses, to the exclusion of which the petitioners excepted. But there is a distinct difference. The opinions given by them having expressly excluded any damage which followed from the decreased travel or less convenience of access because of the discontinuance, the object of the cross-examination must have been to obtain from them an opinion as to how much the estimate given would be increased if sucb damages were included, or to test tbeir soundness of opinion by a comparison between tbe value given by them and the entire damage suffered from both sources, or from the discontinuance alone. Upon the first ground, the petitioners expressly disclaimed any right of recovery, and after such disclaimer the inquiry became a collateral issue likely not only to confuse, but to mislead, the jury. When the counsel for the petitioners had been permitted fully to examine as to the basis upon which their opinion rested, any further interrogation, in whatever form propounded, also was discretionary. This salutary power to direct the proper course of a trial not appearing to have been unjustly exercised, the petitioners’ exceptions are groundless. Jennings v. Rooney, 183 Mass. 577, 579. Commonwealth v. Johnson, 188 Mass. 382, 385. Sullivan v. Fugazzi, 193 Mass. 518.

Exceptions overruled.