
    [No. 5871.
    Decided January 5, 1906.]
    
      In the Matter of the Condemnation of East Spring Street, Seattle. The City of Seattle et al., Respondents, v. W. E. Williams et al., Appellants.
      
    
    Appeal — Record — Condemnation — Inspection of Premises —■ Knowledge Gained Not Brought Up — Verdict—Review. A view by the jury in a condemnation case does not preclude the appellate court from a review of the questions of fact.
    Eminent Domain — Evidence of Values — Sufficiency to Sustain Verdict — View by Jury — New Trial — Discretion of Lower Court. The verdict by a jury assessing damages for land appropriated by a city for a street at $300 per acre should not be set aside as contrary to the evidence from the fact that the lowest estimate of the value by any witness on either side was $400 per acre, where there was other evidence bearing upon the value, the jury viewed the property, and the trial court refused to set aside the verdict on that ground (Rudkin and Hadley, JJ., dissenting).
    Appeal by defendant from a judgment of the superior court for King county, Morris, J., entered July 6, 1905, upon the verdict of a jury assessing tbe damages in a condemnation proceeding, after a trial on the merits. Affirmed.
    
      Fred H. Peterson and U. C. Force, for appellants,
    contended, inter alia, that the assessment of damages should have been set aside as contrary to the evidence.; the view of the jury does not authorize them to disregard the evidence. Chicago etc. R. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083; Jeffersonville etc. R. Co. v. Bowen, 40 Ind. 545; Seattle etc. R. Co. v. Roeder, 30 Wash. 244, 70 Pac. 498; Wright v. Carpenter, 49 Cal. 607; Washburn v. Milwaukee etc. R. Co., 59 Wis. 364, 18 N. W. 328; Grand Rapids etc. R. Co. v. Weiden, 70 Mich. 390, 38 N. W. 294; Atchison etc. R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41, 2 L. R. A. 422; Peoria Gas Light etc. Co. v. Peoria Terminal R. Co., 146 Ill. 372, 34 N. E. 550, 21 L. R. A. 373; Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570; Palmer v. Harris County, 29 Tex. Civ. App. 340, 69 S. W. 229; 15 Cyc. 880; Thompson, Trials (2d ed.), § 896; Close v. Samm, 27 Iowa 503; City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419, 5 L. R. A. 775; City of Grand Rapids v. Perkins, 78 Mich. 93, 43 N. W. 1037.
    
      Scott Calhoun and O. B. Thorgrimson, for respondents.
    
      
      Reported in 83 Pac. 242.
    
   Boot, J.

The respondent city instituted condemnation proceedings to acquire a strip of land belonging to appellant Williams, which parcel of land was a portion of an unplatted tract, and which would be situated between the lines produced of one of the public streets of said city; and was desired for public street purposes, so that said street could be connected with a street upon the opposite side of said property, thus making a continuous street of full width, a narrow lane or alley already connecting the two portions of the street extending in either direction from said parcel of land. A jury was empanelled and sworn to fix the value of the property to be thus taken by the city. Kumerous witnesses gave evidence as to the value of the parcel sought to be appropriated. These witnesses testified as to the location, character, surroundings, accessibility, desirability, and disadvantages of said strip of real estate, and each gave his estimate as to its reasonable value. The lowest estimate of value placed upon the property by any witness was $400, and several of them fixed the amount in many times this sum. The jury, by consent of the parties, viewed the premises and, having heard all of the evidence, returned a verdict wherein they fixed the value of said property at $300. The appellants moved for a new trial upon the ground that the jury erred in assessing the amount of the recovery in that it was too small, and that the verdict was not supported by the evidence, but that it was contrary thereto in that the -.amount of the recovery was grossly inadequate. This motion was overruled» by the trial court, and judgment entered upon the verdict. An appeal is taken therefrom.

It was urged by appellant that the amount of the verdict, $300, being less than the lowest estimate of value fixed by any witness, said verdict is unsupported and contrary to the evidence, and that for that reason the trial court should have granted a new trial. We do not third?: this necessarily follows. In a case of this kind the granting of a motion for a new trial is peculiarly within the discretion of the trial court. It was suggested by respondent that, inasmuch as the members of the jury themselves viewed the premises and doubtless used the information they thereby gathered, we cannot review their verdict for the reason that what they themselves learned by an inspection of the premises constituted evidence which we cannot have before us, and that we must therefore apply the rule which prevents an appellate court from reviewing questions of fact where all of the evidence is not brought up. We do not think the rule invoked should he applied to a matter of this kind. The jury is not permitted to view the premises for the purpose of gathering evidence, but for the purpose of better understanding the evidence which has been adduced before it regarding said premises. We will therefore review questions such as are presented here notwithsanding it appears that the premises were inspected by the WW-

Answering appellants’ contention that there was no evidence to sustain a verdict for less than $400, we call attention to the fact that the placing of an amount upon this propferty by each of the witnesses as its value was merely the expressing of the opinion of such witness. If there were no evidence in the case except these expressions of opinions by the various witnesses, and no evidence or facts which could he deemed at variance therewith, we would doubtless feel that a case was presented wherein the trial court should have granted a new trial. But there was other evidence. One of the witnesses, although he had fixed the value- of the parcel of land at a certain sum, nevertheless in speaking thereof, said it had “virtually none, in the ordinary way and sense of selling property.” Each and all of these witnesses gave a description of this property, and stated numerous facts calculated to show its advantages and disadvantages, considerable evidence being given as to the selling price of other real estate in that part of the city.

All of this evidence had to do with facts which the jury had a perfect right, and which it was their duty, to consider in arriving at their verdict. The facts thus established by this evidence evidently led the jury to reach an opinion in their own minds which was different from that of any of the witnesses. The evidence of these various witnesses as to the condition, qualification, environment, merits and demerits of this property, and as to the prices for which other property had sold in that neighborhood, viewed in the light of their own observations when they viewed the premises, induced the jury to fix the value of said premises in an amount lower than that estimated by any witness except the one who said it had “virtually none.” As a matter of law, it was certainly the privilege of the jury to do this. Having done so, and the appellants having moved for a new trial, it then became the duty of the trial judge to ascertain whether or not there were any reasons for setting aside'such verdict. If he believed the verdict to be grossly inadequate, or that a fair legal trial was not had,_ he should have granted a new trial. Ho passion or prejudice, or facts from which it would necessarily be inferred, are charged; and this is not made a ground of the motion for a new trial. We cannot therefore presume that the jury was thus affected.

To the contention that, in the light of all of the evidence, the verdict was so grossly inadequate as to make it an abuse of discretion for a trial judge to permit it to stand, we must say that it does not so appear. The case was tried by a resident judge of Seattle who may be reasonably presumed! to have known, at least in a general way, of the situation, character and value of this property and perhaps not unacquainted with the witnesses. The latter were personally before bim. He beard their testimony and saw their appearance and conduct upon the stand. He could observe their manner of answering questions and giving testimony. All of these matters furnished the trial judge a much better opportunity to weigh the testimony than has a judge in an appellate court. In view of these facts, and especially in view of the fact that the amounts stated by the various witnesses were but the expression of opinion, and keeping in mind that there was much other evidence touching the character and condition of the property, we cannot say that the trial judge was guilty of an abuse of discretion in not granting the motion for a new trial. That courts should be slow to overturn verdicts rendered in proceedings of this kind, may be seen by an examination of the following authorities: 7 Ency. Plead. & Prac., 581, 593, 594; Parks v. Boston, 15 Pick. 198; Chicago etc. R. Co. v. Jacobs, 110 Ill. 414; McReynolds v. Burlington etc. R. Co., 106 Ill. 152; City of Kansas v. Street, 36 Mo. App. 666; City of Kansas v. Butterfield, 89 Mo. 646, 1 S. W. 831; Guyer v. Davenport etc. R. Co., 196 Ill. 370, 63 N. E. 732; Conness v. Indiana etc. R. Co., 193 Ill. 464, 62 N. E. 221; Kiernan v. Chicago etc. R. Co., 123 Ill. 188, 14 N. E. 18; Omaha etc. R. Co. v. Walker, 17 Neb. 432, 23 N. W. 348; Groves etc. R. Co. v. Herman, 206 Ill. 34, 69 N. E. 36; Mitchell v. Illinois etc. R. Co., 85 Ill. 566; Shoemaker v. United States, 147 U. S. 282, 13 Sup.Ct. 361, 37 L. Ed. 170; Washburn v. Milwaukee etc. R. Co., 59 Wis. 364, 18 N. W. 328; Beveridge v. Lewis, 137 Cal. 619, 67 Pac. 1040, 70 Pac. 1083, 92 Am. St. 188, 59 L. R. A. 581; Fort-St. Union Depot Co. v. Jones, 83 Mich. 415, 47 N. W. 349; Lehigh Valley Coal Co. v. Chicago, 26 Fed. 415; In re Smith, 15 N. Y. Supp. 516; Stockton v. Chicago, 136 Ill. 434, 26 N. E. 1095 ; Gorgas v. Philadelphia etc. R. Co., 144 Pa. St. 1, 22 Atl. 715.

In the case of Conness v. Indiana etc. R. Co., supra, the court said:

“In this class of cases, -where the jury is allowed to go and View the premises and act from their own knowledge as well as from the evidence, we should only feel warranted in setting it aside where it appeared grossly inadequate or grossly excessive.”

In the case of Beveridge v. Lewis, supra, the court held, in substance, that,

“The jury may be permitted, in weighing the evidence in an eminent domain proceeding, to exercise their individual judgment as to values upon subjects within their knowledge which they have acquired through experience and observation.”

In the case of Groves etc. R. Co. v. Herman, supra, the court said, in effect, that,

“In proceedings for the condemnation of land, the jury may base their verdict on knowledge gained from inspection of the premises, as well as upon the testimony of witnesses whose statements were mere opinions and conclusions as to the extent of damages.”

The supreme court of Pennsylvania, in Hartman v. Reading etc. R. Co. (Pa.) 13 Atl. 114, used this language:

“When a jury have viewed and examined the premises [in proceedings to recover damages sustained by the construction of a railroad], their own observation ... is just as good as that of any of the witnesses; and while they are not to disregard the testimony produced on the trial, they are, nevertheless, not required to repudiate the evidence of their own senses.”

And in the case of City of Kansas v. Butterfield, supra, the court sustained an instruction to the following effect:

“That the jury are not bound by the testimony of experts and others concerning the value of the land proposed to be taken and the actual damage done, but may apply their own judgment and knowledge as to such value and damage, in connection with the testimony in the case.”

It will be noticed that these courts have gone much further than we find it necessary or proper to go in this case.

Ho error being assigned except that upon the action of the trial court in overruling the motion for a new trial, and it not being made to appear that such ruling was erroneous, the judgment of the superior court is affirmed.

Mount, O. J., Fullerton, Crow, and Dunbar, JJ., concur.

Rudkin, J.

(dissenting) — The sole question at issue in this case was the value of a tract of land sought to he appropriated for a public use. The verdict of the jury is substantially less than the lowest estimate placed on the property by any witness on either side. Such a verdict is, in my opinion, contrary to the evidence and should be set aside. I therefore dissent.

Hadley, J., concurs with Rudkin, J.  