Willock v. Beaver Valley Railroad

Opinion by

Mr. Justice Moschziskee,

On the last appeal in this case, 222 Pa. 590, we laid down the rule to govern the measure of damages, and particularly called attention to the law “that noise, smoke and dust as well as other inconveniences and discomforts which must be borne by the general public and which are occasioned by the operation of the railroad, cannot be considered in estimating damages for special injuries in this class of cases.” The fourth and fifth assignments of error raise the question: Did the court below confine the evidence as to the damages within the limits ordered by this court?

J. A. Shane, a witness for the plaintiff, admitted under cross-examination that in fixing his estimate of the damages he had taken into consideration “the danger from the operation of the road” and “the smoke and the dust . . . ., and the bringing in a cheaper class of houses.” This testimony was not afterwards changed materially or departed from, and it is clear that the witness did take these forbidden elements into account. The testimony was not only objected to during the examination of the witness, but at its conclusion a motion was made to strike out the evidence. The refusal of this motion was reversible error.

In Hamory v. Pennsylvania, Monongahela & Southern R. R. Co., 222 Pa. 631, we said: “Where evidence has been improperly admitted which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration.” The defendants in the present case were not even given the benefit of such an instruction. On the contrary, the trial judge in his charge treated the testimony as if the witness had confined himself entirely to the element of interference with access to the plaintiff’s property. Though we might not have felt called upon to reverse on this alone, yet in the absence of any instructions that the jury must disregard all elements other than the interference with access, we cannot say that the second and third assignments of error are without merit.

The abstract from the charge to which our attention is called in the first assignment may appear subject to criticism, but when taken in connection with the charge as a whole it does not constitute reversible error.

A careful reading of all of the testimony satisfies us that no substantial harm was done by allowing the question covered by the sixth assignment.

The seventh assignment will not be considered for the reason that the question attempted to be raised therein is not suggested in the statement of the question involved. While the rule governing the question involved is, “It must state the question or questions in the briefest or most general terms, without names, dates, amounts or particulars of any kind whatever,” this does not mean that a question unrelated to the main matter for decision but considered sufficiently important to be assigned for error, need not be included.

The second, third, fourth and fifth assignments are sustained, the judgment is reversed and a venire facias de novo is awarded.