Reyenthaler v. Philadelphia

Opinion by

Mr. Justice Fell,

This was an appeal from the award of a jury, appointed to assess damages caused by the opening of Jackson street.

The first exception is to the admission of testimony on the part of the defendant to show what had become of the buildings which stood within the line of the street. The plaintiff in his examination in chief had described the buildings, and said they had been torn down; and in his cross-examination had at least intimated that they had been torn down and removed by the city. The testimony complained of was to rebut this. It was in contradiction of statements of the plaintiff made in a cross-examination that was relevant, and was therefore competent.

The second exception is to the instruction to the jury that they were “ not to take the possibility of municipal improvement as an argument against the weight of thought or opinion on either side.” This instruction was followed by the statement that this possibility was not to be considered as an independent claim, that it entered into the question of the market value of the ground after the street was opened, and that the witnesses must be presumed to have taken it into consideration in reaching a judgment as to the market value of the property.

In this there was no error. The witnesses testified as experts to the difference in market value before and after the opening of the street. This is all the light the jury had upon the subject. It was proper for the witnesses to take into consideration every element of advantage and disadvantage. No intelligent opinion could be formed without this, and the learned judge was right in saying that they must be presumed to have done so.

It was the privilege of either party to determine, by examination or cross-examination, whether the possibility of improvement had been taken into consideration by the witnesses, but it was the right of neither to introduce the cost of possible municipal improvement as a separate item, and it would be manifestly unjust that such cost should be added to an amount which the witnesses had stated as their judgment of the loss to the plaintiff by reason of the opening of the street.

The instruction complained of is not in conflict with Railway Co. v. McCloskey, 110 Pa. 436; Geissinger v. Hellertown Borough, 133 Pa. 522; Harris v. Railroad Co., 141 Pa. 242; Dawson v. Pittsburgh, 159 Pa. 317, and other cases in which it has been held that the cost of fencing, grading, paving, etc., are matters proper for consideration in deciding whether the opening of a street has been an injury to property. These are certainly matters proper for the consideration of any one forming an opinion on the subject, whether a juror or a witness; but they are not independent claims, and the instruction in this ease was in effect a caution to the jury not to add items of possible future expense to amounts which the witnesses testifying as experts had fixed as the measure of damage.

The judgment is affirmed.