Pittsburg v. Newell , 223 Pa. 420 ( 1909 )

Opinion by

Mr. Justice Elkin,

The issue in this case as originally framed made Newell plaintiff, and the city of Pittsburg, defendant, but the record was subsequently amended so as to reverse the order of the parties, which fact seems to have been overlooked in the preparation of the paper-books. This is a proceeding under the act of 1891 for the assessment of benefits upon the property of appellee alleged to have been benefited by the widening of Virgin Alley. The case was tried in the usual way by the introduction of witnesses with expert knowledge of real estate values, and the record does not disclose any material departure from the settled rules of evidence permissible in such cases. The assignments of error relate to an attempt made by learned counsel for appellee on cross-examination of two witnesses offered by the city, to develop the fact that the property in question, so far as benefits might accrue to the owner of the fee, was burdened with an outstanding lease for a term of years. This was objected to as immaterial, irrelevant and not cross-examination. As to the witness Burkhart, the offer was withdrawn and the question not pressed. As to Leggate, objection was made that the proposed question was hypothetical, not based on facts in evidence, and the learned trial judge ruled it out. Certainly under these circumstances, the matters complained of do not constitute reversible error, nor does anything appear in this record to justify the application of the rule that where irrelevant testimony is willfully offered, or inflammatory remarks are made, for the purpose of unfairly prejudicing the minds of jurors, it is cause for reversal. The remarks of counsel for appellee complained of called upon counsel for appellant to try the case according to the facts. At most, it was only counsel’s expression of the views of the law as it should apply to the facts of this particular case, and the court below in its opinion refusing a new trial has stated that the contention was pressed in good faith by counsel and finally ruled out. This assignment is without merit.

Judgment affirmed.