Chicago & Great Western Railroad v. Wedel

Gaby, J.

On this record it appears that the appellee owns a lot, twenty-four feet wide, with a two-story and basement dwelling house upon it, fronting south on Rebecca street, and the appellant has a two-track railroad in operation in the street, the north track of which is nine feet south of the southeast corner and touches the southwest corner of the lot. The suit was tried upon the theory, adopted by both parties, that the appellee was entitled to recover in this suit the diminution, if any, in the value of his premises by the location and operation of the road. When the appellee rested Ms case, he had not proved that the appellant owned or operated the road; but the appellant supplied that omission, thereby waiving the motion to dismiss. Joliet Ry. Co. v. Velie, 26 N. E. R. 1086; Campau v. Bemis, 35 Ill. App. 37.

A witness for appellee was asked, “ And from the prox- . imity of the premises to the railroad track can you tell whether the smoke and cinders and gases from passing' locomotives would enter those premises—enter the house % ” and he answered, “Yes, sir; very likely.” The exception to this question is well taken, and if it were reasonably probable that the result could have been affected by the answer, it would be error. But the matter is of such common knowledge that it is impossible that the jury could have thought that answer of any consequence. The other complaint as to evidence is, that a witness for the appellant who had testified as to value, was not permitted to answer the question, “Was that valuation based upon what you had been paying for similar property in the neighborhood ? ” There are divers valid objections to that question. First, it is leading; second, it leaves to the opinion of the witness what is similar property; and third, it lumps transactions which, though in detail admissible, must, if put in evidence, be so described that the jury may make the comparison and draw the proper inference.

The instructions given are as follows :

For appellee: “ The question for the jury in this case is whether the construction and operation of the railroad constructed by defendant in Eebecca street, near the premises of defendant, damaged and depreciated the market value of the premises of the plaintiff. If from all the evidence you find and believe that the effect of the construction and operation of said road was to damage and depreciate the value of said premises in the market, you will find the amount the value of said premises was thereby depreciated, and find the defendant guilty, and award him as damages the amount of such depreciation in value.”

For appellant: a The jury are instructed that they must find for the defendant unless they find that the construction and operation of the tracks of the defendant have caused the premises of the plaintiff to depreciate in market value.- The jury are instructed that if they find from the evidence that the premises of the plaintiff will sell for more in the open market than it would if the tracks of the defendant had not been constructed and operated in the manner shown by the evidence, and that this result was caused by the construction and operation of the tracks of the defendant, then they should find for the defendant.”

An instruction asked by the appellant and refused is: “ The jury are instructed that if they find from the evidence that the construction and operation of the tracks of the defendant has caused a change in the best use to which the premises could be applied, and that the property is now worth more in the open market for the new use than it was before the construction of the road, then they should find for the defendant.”

We have already said that the suit was tried upon the theory adopted by both parties, that the appellee was entitled to recover in this suit the diminution, if any, in the value of his premises by the location and operation of the road. That such theory was adopted by both parties is shown by the instructions they asked, and as to the appellant, it-is further shown by the statement of the counsel of appellant on the trial, when offering evidence, viz., “ bearing in mind always the language of the Supreme Court that in this suit he (the appellee) recovers once for all the damages present and. prospective.” It is not open to the appellant now to say that that is not the right theory. Chicago F. & B. Co. v. Major, 30 Ill. App. 276; McMahon v. Sankey, 35 Ill. App. 341; Chicago v. Moore, 40 Ill. App. 332. The refused instruction is but a paraphrase of the second one given for the appellant. It was rightly refused. Daegling v. Ill. Vault Co., 33 Ill. App. 341, and cases there cited by counsel. The jury awarded the appellee $1,500 damages. The appellant endeavored to satisfy the jury that the premises were increased in value by becoming adapted to business, through the transportation facilities. But this was upon the very uncertain hypothesis that they would be used in connection with adjoining property. That for a residence it is inconvenient to have a railway operated almost across the threshold seems obvious.

There is no ground for reversing the judgment, and it is affirmed.

J%idgment affirmed.