Baltimore Belt Railroad v. Sattler

This is an action to recover damages brought by George W. Sattler of Baltimore City against the Baltimore Belt and the Baltimore and Ohio Railroad Companies for alleged injury to his property caused by smoke and unwholesome vapors discharged by the engines which are run over the Belt Railroad and by the large amount of noise and vibration caused by such engines and the trains of the defendants.

The narr. alleges "that by reason of the said discharge of smoke and offensive and unwholesome vapors upon the plaintiff's land and by reason of the said noise and vibration as aforesaid, upon the plaintiff's said land, it is rendered far less desirable for dwelling or building purposes than it otherwise would be; the plaintiff is deprived of the profits and advantages that would reasonably enure to him from the development and improvement of his said property and the value thereof is seriously impaired. * * *."

The defendants pleaded the general issue. Subsequently they asked and obtained leave to file an additional plea. It alleges that the Belt Railroad Company in the execution of the powers conferred on it by its charter and by the Act of Assembly and by ordinance of the city of Baltimore has constructed its railroad in the manner and upon the route prescribed and said railroad is now being operated in the execution of the powers conferred on the Belt Railroad Company by its charter, the Act of Assembly and said ordinance; that the cars and engines operated over said road are all of the best modern type and are operated in a careful manner and that the noise, smoke, vapors and vibration and other inconveniences complained of by the defendant result from the operation of its cars and engines in a lawful manner, and that any damage caused the plaintiff by the operation of said railroad has been caused by the necessary and unavoidable result of theoperation of said cars and engines in a lawful manner.

The plaintiff's demurrer to this plea was sustained, and the defendant withdrew their pleas previously filed and demurred to the narr. This demurrer was overruled, and the defendants filed a second additional plea which on motion of the plaintiff was not received, whereupon the defendants refiled the general issue pleas and its first additional plea, a demurrer to which last-named plea had already been sustained. It was again demurred to and the demurrer again sustained. During the course of the trial a large number of exceptions were taken to rulings upon the admissibility of evidence and one to the action of the Court upon the prayers. The judgment was in favor of the plaintiff and this is the defendants' appeal.

Before considering the questions that are presented by the record and relied on here it may be proper to say that we are not called on to discuss the ruling of the Court below on the defendants' demurrer to the narr., nor that relating to the plaintiff's motion ne recipiatur, because the former is presented by the demurrer which was sustained to the additional plea, and all objection to the latter was abandoned at the hearing in this Court.

The first question presented arises upon the action of the lower Court in sustaining plaintiff's demurrer to the defendants' additional plea. The demurrer is based upon two grounds, first, that the plea amounts to the general issue, and second, that it asserts the legal proposition that the plaintiff is not entitled to recover damages for the injury alleged in the declaration, without proof of negligence. Counsel for both sides concur in saying that the second ground of this demurrer is the main and by far the most important question involved in this appeal. Whether, therefore, the plea is subject to the criticism that it amounts to the general issue and for that reason is defective, is quite immaterial for the main question, namely, whether the plaintiff can recover without alleging and proving negligence on the part of the defendants, is also presented by the demurrer to thenarr. and by the ruling of the Court on the plaintiff's prayers. Briefly then in regard to the first ground of this demurrer. We do not think the plea is bad on the first ground relied on. Under the strict rules of pleading the defendants have a right, if they so elect, to plead specially, defenses in confession and avoidance which would be admissible in evidence under the general issue; and the fact that they are so admissible does not make the plea bad. Poe's Pl., sec. 641; DeLauder v.Baltimore Co., 94 Md. 7. Thus in this plea the defendant says substantially, "Yes, I confess that there is smoke and there are the other things complained of by the plaintiff, but they all necessarily result from the operation of our cars, engines and road in a lawful manner." The plea, therefore, is a plea of confession and avoidance. McAllister v. State, 94 Md. 300;Keedy v. Long, 71 Md. 388. Before proceeding to discuss the main question presented by the demurrer, perhaps it would be desirable for the purpose of clearness to state the facts of the case more at large than we have already done.

It appears from the evidence that the plaintiff has for many years lived at 2619 North Charles street, Baltimore, and that he is the owner of the two lots of ground, the damage to which is the basis of this suit; that one of the lots is 100 feet front on Charles street immediately south of the open cut of the Baltimore Belt Railroad and running back 184 feet; that the other lot fronts 50 feet on Charles street with the same depth as the first-named lot; that between these two lots there is a lot 50 feet front on Charles street with same depth as the others just named, on which is situated the house in which plaintiff resides but does not own; that the two lots first named, damage to which is here claimed, are used as a garden and contain shade trees, walks, fruit trees, flowers, c.; that there are two tracks in the open cut of the Baltimore Belt Railroad immediately north of this property, over which tracks, a great number of trains pass during the day and night; the tunnel runs a little beyond the front yard of plaintiff's lot, to the north and the smoke and the gas and the vibration are caused by the trains. The plaintiff testified, as did other witnesses, that as soon as the trains come out of the tunnel into the open cut in front of his lots they draw the smoke out of the tunnel and it is cast upon his property to such an extent that everything is dirty and unpleasant; that the noise and vibration caused by the trains are very unpleasant. There was also a mass of testimony in regard to the injurious effects on the value of the plaintiff's property caused by the injuries complained of, which will be considered later, but the question now is whether, assuming the plaintiff's property was injured in the manner and to the extent alleged in the narr. and admitted by the plea, he can recover without showing negligence on the part of the defendants.

(1) The case of Short v. Baltimore City Passenger RailwayCo., 50 Md. 73, was much relied on by the defendants. There it was held by the majority of this Court that the defendant company was not liable without proof of negligence for damage to plaintiff's house caused by obstructing the natural flow of water in the street due to clearing snow from its tracks; and JUDGE ROBINSON said in delivering the opinion of the Court that the broad question was presented whether damages could be recovered irrespective of the question of negligence on the part of the railway company, and that the true test in actions of that kind by which exemption from liability is to be determined is whether in the act complained of the owner has used his property in a reasonable, usual, and proper manner, taking care to avoid unnecessary injury to others.

It was upon Short's case, supra, and the provision of our Code, sec. 198, Art. 23, that the defendants based their contention that there can be no recovery in this case without proof of defendant's negligence. The section of the Code just referred to provides that railroad companies shall be responsible for damage resulting in the killing of cattle, c., or by fire from their engines, unless they "can prove * * * that the injury complained of was committed without any negligence."

Undoubtedly if the rule laid down in Short's case is applicable in all its breadth to this, the defendant's contention needs little more to sustain it, so far as Maryland authority is concerned, for that case declares that if the act there complained of was lawful and that if the defendant used its property in a reasonable, usual and proper manner taking care to avoid unnecessary injury to others no recovery can be had even though damage should follow such use. The plea, the demurrer to which we are considering, alleges that the injuries here complained of are only such as necessarily and unavoidably result from the operation of the road lawfully.

Let us, therefore, in the first place, examine Short's case in order to see what is the full scope of the rule there laid down by the majority of the Court and the grounds upon which it is based; and then secondly to ascertain whether the provisions of the Code just referred to have any bearing upon the questions raised by this demurrer.

What are the facts of the Short case? On the 6th January, 1877, there was a heavy fall of snow, and in clearing its track, the Baltimore City Passenger Railway Company threw the snow off towards the curb and thereby, as it was alleged, obstructed the natural flow of the water at the corner of Gay and Hoffman streets. A very heavy rain "one of unusual severity" followed the snow and the plaintiff's house was flooded with water. He asked the Court to instruct the jury that if they should find that the Railroad Company obstructed the natural flow of the water on the street and by reason of such obstruction plaintiff's house was flooded, he was entitled to recover. This prayer was modified by the Court below to the effect that if the defendant company exercised ordinary care in removing the snow from its track and that the damage was attributable either to the conformation of the ground and the situation of the injured premises, or to a storm of such extraordinary severity that the usual drainage provided by the city would not carry the water off, then their verdict should be for the defendant. This prayer as modified was granted. And in the opinion of the Court, the conclusion arrived at, is placed upon two grounds, first, that the defendant in the act complained of was as matter of law using its property "in a reasonable, usual and proper manner;" and second, that if, as matter of fact, the damage was attributable to the conformation of the ground or to a storm of extraordinary and unusual severity the plaintiff could not recover. So that what was decided as matter of law in Short's case was this and no more, that the act complained of in that case was authorized by the charter of the defendant and the ordinances of the city of Baltimore, and that, therefore, "the throwing of the snow on the bed of the street was using the street in a usual, reasonable and proper manner;" and that the plaintiff could not recover unless the defendant was guilty of negligence. Without intending to question the decision in Short's case, so far as applicable to the facts of that case, we do not think it affords the defendant any justification in asking us to sustain its plea in the case now before us. What is that plea? We have already recited its substantial allegations. It is sufficient now to recall that it alleges that all the injurious acts complained of in plaintiff's declaration are only such as necessarily result from the operation of defendants road and the running of its cars and engines. While the demurrer, of course, admits all matters of fact well pleaded, it does not admit matters of law, and hence the question whether the acts complained of in the declaration and admitted by the plea are authorized and justified by defendants' charter and the city ordinances must ultimately be decided by the Court and not by the jury. Whether, therefore, the defendants in the construction of the tunnel and in the operation of their road and the running of their engines and cars were acting in a lawful manner depends upon their charter and the ordinances of the city of Baltimore passed in pursuance thereof. By its charter it was authorized to build its road for the most part through a tunnel through the city of Baltimore with the consent and upon the conditions prescribed by the ordinances of the city.

By Ordinance 83, sec. 5, certain provisions were enacted providing how the tunnel should be ventilated, in addition to the ventilation afforded by the mouths thereof, and by sec. 14 of the same ordinance it was declared that the provisions of said ordinance shall be deemed conditions of the consent of the municipal authorities to the passage of said road through the city of Baltimore, and as prescribing the manner, terms and conditions upon which the streets, c., or ground of any kind in said city may be used by said Railroad Company. This ordinance was approved May 14th, 1890.

Ordinance 84 approved on the same day provided that in the open cut immediately north of the plaintiff's lot should be established a station, the train sheds of which shall, however, be so constructed as to cover the whole of the railroad tracks and platform in said cut, and to be provided with smoke escapes, the tops of which shall be not less than 25 feet above the level of Charles street. It is further provided that the provisions of this ordinance shall be construed to all intents and purposes as though they had been inserted in Ordinance 83, and hence the compliance with the provisions of this ordinance requiring the covering of the open cut from which the narr. alleges and the plea admits all the damage complained of arises, is expressly made a condition to the consent of the municipal authorities to the passage of the railroad through the city.

Now the narr. alleges and the plea admits that the plaintiff's property was damaged by the smoke, noise, vapor, c., which was caused by the running of the defendants' trains. The plea also alleges that all this injury was the unavoidable result of the operation of defendants' cars in a lawful manner. Of course this last allegation is not admitted by the demurrer, because matters of law never are so admitted. Therefore the demurrer does not admit that the acts which produced the injury were lawful. The charter and Ordinance 83 referred to in the plea do undoubtedly authorize the defendants to run trains through the tunnel, and therefore it could lawfully do so, but surely it cannot follow that because the defendants allege they did this lawful act in a lawful manner, it necessarily follows they did so. Whether they did or did not is a question of law for the Court to decide. In the face of the allegations of injury to plaintiff's property, all of which are conceded, can we say that the defendants acted in a lawful manner? No one, neither private individual nor a corporation, has the right in the use of his property to injure his neighbor as it is conceded the plaintiff is injured by the acts complained of. Such injuries are neither in fact nor law only such as necessarily follow the lawful use of chartered privileges. Not so in fact because we all know from observation and experience that such lawful use does not produce the result alleged, and if it did it would be impossible to reside in close proximity to railroads; and not so in law, because it is the law everywhere that everyone shall so use his own property as not to injure his neighbor. But not only so, we have frequently held that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to a neighboring owner for which an action will lie. And this too without regard to the locality where such business is carried on; and although the business may be a lawful business and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business.Susquehanna Fertilizer Co. v. Malone, 73 Md. 268; Same v. Spangler, 86 Md. 562. This rule applies to individuals and corporations alike.

From what we have said it will appear that while the Court held in Short's case that in the act there complained of the defendant company in view of their charter and the ordinance of the city used the street in a reasonable and proper manner, and that if there was no negligence, no recovery could be had, we are of opinion that in this case while the defendants had the right to run their trains they had no right given them by their charter or otherwise to operate them in such a manner as to injure the plaintiff's property to the extent it is conceded it was injured.

It will be observed that the plea is based upon and refers only to its charter and Ordinance 83 of 1889-1890 as justifying its acts and making them lawful, No reference whatever is made to the later Ordinance No. 84 of 1890 nor to No. 81 of 1901 and both of which it was agreed should be and were offered in evidence, and by the first of which the defendants were required to build certain sheds with smoke escapes and by the second of which they were relieved of that duty upon certain conditions.

If then, as we have said, the injuries to the plaintiff's property were such as alleged and admitted, it would be impossible for the defendants to successfully seek protection under their charter, the Acts of Assembly or the city ordinances. In Cogswell v. N.Y., c., R. Rd., 103 N.Y. 10, it was held that the statutory sanction which will justify an injury to private property by a railroad corporation and without the consent of the owner must be express or given by clear and unquestionable implication from the powers expressly conferred, so that it can be said that the Legislature contemplated the doing of the very act which occasioned the injury." If it be assumed, however, that the Legislature of Maryland intended to confer power upon the defendants not only to use the open cut and tunnel, but also to use them in such a way as is alleged and admitted i.e. to the serious injury of the plaintiff and his great discomfort and at the same time deprive him of all remedy, such legislation would we think, clearly be invalid. Thus in the case of Stevens v. Canal, 12 Mass. 466, it was held that if in such a case, where private property is taken by authority of the Legislature without affording at the same time means of relief and indemnification the owner of the property would undoubtedly have his action for damages at common law against those who should cause the injury. For although it might be lawful to do what the Legislature should authorize, yet to enforce the principles of the Constitution for the security of private property, it might be necessary to consider such legislation as inoperative, so far as it trenched upon the rights of individuals. This decision announces only well-settled law.Pumpelly v. Green Bay, 13 Wallace, 166.

2. But if it could be assumed that the Legislature and City of Baltimore intended to and did give the defendants the right to do the very acts which resulted in such serious damage, then under the well-settled rule laid down in the Reaney case, 42 Md. 117, the fact that the acts were lawful and free from negligence would not protect the defendants if damage follows. We might say here as was said in the case just cited, "In this case the jury have found that the property of the plaintiff has been damaged to the extent of $3,000, and it would be a reproach to the law if the Courts were required to determine that it was a case of damnumabsque injuria and that there was no redress for such a wrong."

Of course it may be conceded that if the damage which resulted was only that incidental inconvenience which unavoidably follows the exercise of charter powers we might say as was said in B. P.R.R. Co. v. Baptist Church, 108 U.S. 317, that such damage is without remedy and that "the private inconvenience in such case must be suffered for the public accommodation." But we have already said that in our opinion the damages and injuries here alleged and admitted are not of such a character.

But again, if in view of our decisions it could be said that the injuries to the plaintiff's property do not amount to an actual invasion, does that fact exculpate the defendants? It is argued that the lawful act done in the Reaney case for which there was a recovery resulted in an actual invasion, and that hence that case has no application here. But there are a number of other cases in which it has been held that a recovery may be had for consequential injuries caused by a lawful act even when there is "no taking." So that an action lies in both cases.Garrett's case, 79 Md. 277; Reaney's case, 42 Md. 117; LakeRoland R. Co. v. Webster, 81 Md. 529, and other cases not necessary to cite. Why there should be any difference made in the right to recover if there is an actual invasion, and when the damage is only consequential, it is difficult to understand, for the damage, loss, inconvenience and discomfort to the owner may be as great in one case as in the other. In Guest v. ChurchHill, 90 Md. 689, we held that the overflowing of the land of an individual with water is an invasion thereof; and the fact that smoke, noise and vapor caused the injury here can make no difference, certainly none in the right to recover. Adams v.Michael, 38 Md. 123, and Fertilizer Co. v. Spangler,86 Md. 562.

We will not stop to discuss the conflict of authority upon this question. In some of the text-books as well as in the decisions of some of the Courts of last resort a contrary view is held; but in the recent case of N.Y., c., R.W. Co. v. Jones,94 Md. 37, JUDGE PEARCE in delivering the opinion of this Court said that the case of Hatch v. Vermont Cent. R.R. Co., 25 Vt. 50, opinion by JUDGE REDFIELD, in which it was held that railroad companies are not liable for necessary consequential damages accruing to premises not taken, could not be approved. So that we may say that the law is settled in the State by a number of cases that damages may be recovered whether they result from direct invasion or from consequential injuries.

3. We do not perceive what application the provisions of Art. 23, § 198, Code, have to this question. It is there provided that if railroad companies injure any stock, as cattle, horses,c., or if injury is occasioned by fire from their engines * * * unless the said company can prove to the satisfaction of * * * the tribunal before which the suit may be tried, that the injury complained of was committed without negligence on the part of the company or its agents, they shall be responsible for such injuries. Upon its face this statute changes in the special cases mentioned, the recognized burden of proof. Before it was passed, in order to recover for injuries to cattle, c., as therein mentioned, the plaintiff could not maintain his suit unless he proved negligence. Now, however, he may prove the injury and it becomes the duty of the defendant to prove that the injury was committed without any negligence. But we are not to assume that this statute makes any other change either in the general law or in the rule regulating the burden of proof in any other respect. The duties and liabilities of railroad corporations in relation to the owners of property along their roads remain the same in all other respects. Hence if the defendants would have been liable before Code, Art. 23, § 198, was adopted for the injuries here complained of, it is liable now. And if the defendants were liable as we have already said they were, irrespective of this provision of the Code, they still so continue. We are of opinion that the demurrer was properly sustained. What we have said also disposes of the questions raised by the exception to the ruling on the prayers.

4. This brings us to the exceptions relating to the rulings upon the testimony.

Defendants sixth, seventh and tenth exceptions were taken to the allowance of questions to be asked several witnesses for the purpose of showing defendants violation of the Ordinance No. 84 of 1889-1890, which was offered in evidence without objection. This, it will be remembered, is the ordinance which required the defendants to cover the open space with a shed supplied with smoke escapes. In the first place both of the witnesses to whom these questions were addressed were shown to be experts, and it seems to us that sufficient ground was laid in their preliminary examination to qualify them to testify as experts on the subject of the ventilation of tunnels. We have held that the defendants plea was bad, and therefore the case was properly tried on the evidence offered under the general issue plea. In effect the defendants defense was as said inN.Y., c., R.R. v. Jones, supra, nothing more than a denial of the right of the plaintiff to recover, and it was, therefore, proper for him to prove that the defendant had failed to comply with the requirements of the ordinance in question. The testimony involved in these exceptions (the 6th and 7th), related to this ordinance and the failure of the defendant to erect the required sheds and smoke escapes, and was, therefore, admissible. Theninth exception was taken to the asking of one of the witnesses on re examination a question for the purpose of affording him an opportunity of explaining some of his answers given on cross-examination. This, of course, was proper and legitimate. The eighth exception was taken to the admission of certain testimony of Mr. Hook who testified as an expert on the ventilation and construction of tunnels. The testimony objected to was this. That in his opinion the quantity of smoke cast on Mr. Sattler's land was increased by the existence of the tunnels in that neighborhood over what it would have been if there had been no tunnels there. It does not appear to us that the fact proposed to be proved by this witness is such testimony as can be given by an expert. The Court or any member of the jury knew quite as well as the witness that if the road ran all the way through an open cut the smoke would be distributed all along the whole distance and necessarily there could not be so much of it at any particular point. The fact, however, that the smoke is collected in the tunnels and forced into the open cut and thence upon the plaintiff's land was testified to by the plaintiff and others, and hence the defendants were not injured by the proof of the witness's opinion to the same effect.

The thirteenth, fourteenth, twenty-sixth and twenty-ninth exceptions were taken to the admission of testimony as to the effects produced by the smoke, c., in the immediate neighborhood on property other than the plaintiff's.

This testimony was admissible. How better could the plaintiff establish his case? If his property alone of all others similarly situated was affected and if he alone of all those who lived near the open cut was made uncomfortable, the jury might well have said it was his fault and not that of the defendant. And the only way to show that others and their property were affected in the same way, though, perhaps in different degrees, was to show this condition by those who were personally acquainted with the situation. Cooper v. Randall, 59 Ill. 317; Doyle v. M.R.Co., 128 N.Y. 495, 496.

Exceptions fifteenth, twenty-first, twenty-seventh, thirty-first, thirty-second, thirty-third rest upon the admission of expert testimony as to the fact that the smoke, vapors, vibrations, c., caused a diminution in the value of the plaintiff's lots, and,

Exceptions sixteenth, seventeenth, nineteenth, twentieth, twenty-second, twenty-third, twenty-fourth and twenty-fifth are based upon the action of the Court in allowing expert testimony to show the amount or extent of the damage.

The general rule, of course, is that facts and not opinions must be given in evidence. Expert testimony is a well-known exception to this settled rule, and the question then is whether the testimony just referred to is included within the exception.

The rule in regard to the admissibility of expert testimony is well settled. In the case of Stumore v. Shaw, 68 Md. 19, it is thus stated by the late JUDGE MILLER who delivered the opinion of the Court. "There is a general concurrence of authority and decisions in support of the proposition that expert testimony is not admissible upon a question which the Court or jury can themselves decide upon the facts; or stated in other words, if the relation of facts and their probable results can be determined without special skill or study, the facts themselves must be given in evidence and the conclusions or inferences drawn by the jury." Again "where the question can be decided by such experience and knowledge as are ordinarily found in the common walks of life, the jury are competent to draw the proper inferences from the facts without hearing the opinions of witnesses." Turnpike Co. v. Leonhardt, 66 Md. 78. Without undertaking to lay down any general rule, it appears to us that, certainly so far as the proof of the fact of damage is concerned there ought not to be any doubt. It can hardly be said that it requires either special knowledge or skill to enable a witness who has seen the property in question and has observed the effects of the alleged injurious acts to say whether the condition thereby produced is beneficial or otherwise. Strictly speaking, perhaps, no witness whether expert or not should be allowed to draw from the facts the conclusion that the property is damaged, for the jury are quite as competent to do that as the witness. But we believe the practice in this State has been otherwise, and witnesses who are acquainted with the property and have observed the effects of the alleged tort have been generally allowed after giving the facts to the jury to testify as to the fact of damage.

In regard to the other question, whether expert testimony is admissible to prove the exact amount of damage, there is a wide difference of opinion. In 2 Lewis on Eminent Domain, sec. 436, it is said that such testimony has been held admissible in the following States: Arkansas, California, Illinois, Maine, Massachusetts, Minnesota, Missouri, Oregon, Pennsylvania, Texas, West Virginia and Wisconsin, while the contrary has been held in Alabama, Georgia, Indiana, Iowa, Kansas, Nebraska, New Jersey, New York and Rhode Island.

It is not desirable to enlarge the limits within which expert testimony is admissible, and whenever the ultimate fact desired to be proved is, from the nature of the issue, especially confided to the jury, such evidence should be rigidly excluded.

The object for which the jury is sworn, that is to say if they find there is damage, is to find the extent of it measured in dollars and cents. But to allow the expert to give such testimony not only puts him in the place of the jury, but permits him to indulge in mere speculation. Witnesses who are competent for that purpose may testify as to the value of the property before and after the alleged injury. But it by no means follows that the injury is the sole cause of the diminution if any exists. Whether it is or not or to what extent is for the jury and not the witnesses to determine. In Roberts v. N.Y.E.R.R.et al., 128 N.Y. 464, PECKHAM, J., said: "The first question asked of this witness to which exception is taken * * * calls for his opinion as to the amount of damages. * * * The precise question which is to be determined by the Court and jury is by this interrogatory placed before the witness for his opinion and decision. To permit it to be answered is beyond all question against the great mass of authority in this and other States." Again quoting from the same case. "Expert evidence of the actual value of real estate is proper and in many cases essential. The present value of the property of the plaintiff can be proved by expert evidence, both the value of the fee and the rental value. Both classes of value could also be proved by expert evidence, as of a time immediately prior to the building of this road. They are opinions based on facts which now exist or which once existed, and if the expert have knowledge of them, he should be permitted to state it. As to what the value would have been under circumstances which never existed he knows and can know nothing, but must form an opinion wholly speculative in its nature, which opinion must be based on data perfectly easy for him to state, and from which when once stated, an ordinarily intelligent jury can draw as just and fair an inference of a possible yet conjectural value, as could the expert. And that very inference must in some way be drawn by the jury, for it is the question it is called upon to decide." Roberts v. Railroad, supra.

But it has often been said that it would be inconsistent to hold that testimony as to the exact amount of damage is not admissible, and at the same time admit proof of value before and after the injury, 2 Lewis on Eminent Domain, sec. 436; Rogerson Expert Testimony, sec. 153, leaving it to the jury only to make the simple calculation involved in subtracting the one value from the other. But the error of this view, we think, consists in assuming that that is the only duty the jury have to perform in this respect. We have already indicated our view in regard to the respective provinces of the jury and the witnesses in this important matter. In Railway Co. v.Gardner, 45 Ohio, 323, the Supreme Court of that State held that the primary facts which enable the jury to determine theextent of the injury are the values of the land before and after the alleged tort. "If it be contended" said C.J. OWEN, "that when a witness has stated what in his opinion is the difference in the value of the land before and after the location of the road, or how much less it is worth after than before, he has substantially stated the substantive fact to be ascertained" (that is to say the amount of damage) "the obvious answer is that he is, by this form of inquiry (that is, the inquiry "How much is the damage") left to estimate in his own mind the amount of damages sustained and give this to the jury as the difference in value. There is no assurance that he will, in making his estimate take into account the actual value before and after the location of the road. Indeed there is no assurance that he may have an intelligent opinion of the value of the land affected, either before or after such location, except that he has qualified himself in the opinion of the Court as a witness." It is, of course, no answer to say that the witness may be cross-examined, for that he has never been considered a test of the competency of a witness or the admissibility of testimony.

We are of opinion, therefore, that it was error to have permitted experts to give their opinions as to the fact as well as to the exact amount of damage. What we have said covers all the exceptions relied on in the brief of the defendants. All others were abandoned at the hearing in this Court.

It follows that for the errors indicated the judgment must be reversed.

Judgment reversed and new trial awarded.

(Decided January 12th, 1905.)