
    Traut v. New York, Chicago & St. Louis Railway Co.
    On an issue directed by the court, on an appeal from an award of viewers assessing damages for land taken by a railroad company by right of eminent domain, it is not error for the court to direct a view of the premises by the jury, on the trial, after they have been empaneled and sworn.
    
      It seems, that such practice is authorized, in general terms, by \ 3, of the Act of April 10,1856, which gives the court, to which an appeal from the report of viewers is taken, “power to order what notices shall be given connected with any part of the proceeding, and make all such orders connected with the same as may be deemed requisite.”
    Under ? 12 of the Act of Feb. 19,1849, a railroad company is not required to construct a causeway across its road to connect lots of land of a plantation separated by the construction of a railroad, where a public road crosses the railroad, furnishing access to the different lots, notwithstanding a private way has been cut off by the construction of the railroad.
    The plaintiff will not be allowed to introduce evidence of the value of a part of & farm as a building site, there being no buildings upon it.
    The defendant may, on cross examination, ask plaintiff’s witness about particular sales of properties in the neighborhood, in order to test the witness’s information as to values.
    April 23, 1888.
    Error, No. 168, Jan. T. 1887, to C. P. Erie Co., to review a judgment for the plaintiff in an issue directed by the court, on an appeal from an award of viewers assessing damages for land taken by defendant company, for a right of way, at Sept. T. 1881, No. 156. Trunkey, J., absent.
    In 1881 the defendant Railroad Company located its road over and through the plaintiff’s farm. Viewers were, on motion of defendant, appointed to assess the damages and they awarded plaintiff $500. Erom this award an appeal was taken and the cause came on for trial Dec. 10, 1885, when the defendant moved the court to direct a view of the premises by the jury- Plaintiff objected; objection overruled, and bill sealed. The jury, after being empaneled and sworn, were sent to view the premises. [1]
    The evidence was to the following effect, on the trial before Gaubraith, P. J.:
    The plaintiff’s farm contained 135 acres. The raffway was so located and built as to cut off from the southeast corner of it about two acres, and the land embraced in the right of way is two and one one-hundredth acres, thus making in all, taken and cut off by the railway, four and one one-hundredth acres of land. The farm on the south is bounded by a public road. It was claimed, on the part of the plaintiff, that he had a way on his own land — a lane or private road leading south and across the railroad to the public road, and from which he was cut off, and that that was his best and principal means of going in and out. On the other hand, it was claimed on the part of the railroad company that the plaintiff had the same outlet that he had before, and which he always, or mostly, used — a road known as the Thornton road. To this the plaintiff answered that the Thornton road was a private road from which he might be cut off at the will of the owner of the land through which it passed. Evidence was given that this was originally laid out as a private road, but that it has been for many years worked by the township authorities, and used and recognized as a public road.
    
      W. O. Bachelor, a witness for the plaintiff, having testified that the selling value of the farm had been affected probably $5,500 by the railroad, was asked, on cross-examination, whether he knew of any property being sold in that neighborhood in 1880 or 1881 and, if so, what property. Plaintiff’s counsel objected to going into particular cases. Objection overruled, exception and evidence admitted. [3]
    
      The witness having then testified that he knew of the sale of the Hathaway farm, was asked the following question:
    “ Q. Was not it sold after Hathaway had given part of it to the defendant, railroad, on condition that the railroad would locate its passenger and freight depots on the Hathaway farm ?”
    Objected to: As assuming a fact not proved, and that the value of special and particular farms is not a test of the value of this farm, as it would open up an investigation of the characteristics and elements of value of every one of the other farms, and of the necessities of the parties who might own them, and as to the mode and reason why they were sol,d.
    The court: “We had it in a case tried yesterday. Witnesses are called on part of the plaintiff. Then the defendant says, you say it is worth $125 an acre; what lands have you known to be sold at that price? Then if the witness answers some piece, they can ask him whether that land did not have exceptional advantages with the view of eliciting, if they can, that that land was not a criterion for this. This is legitimate cross-examination. Objection sustained and exception.” [4]
    The same witness was further asked: “ Q. Was not the Hathaway farm sold after the passenger depot of defendant railroad was located upon that farm; the location fixed upon that farm ; not that the building was built, but simply that it was agreed that it should be put there?” Objected to; over-ruled; exception. [5]
    L. M. Anderson, another witness for plaintiff, was interrogated, on cross examination, as follows:
    “ Q. How much was the Jason Cross farm [one in the neighborhood] sold for ? A. I didn’t know that it was sold until yesterday. Q. What sales do you know of? A. The farm that William Cross bought — he bought the Gluck farm within about a mile of there. Q. How much was that ?” Objected to, objection overruled and exception. [8]
    Plaintiff was asked: “ Q. What, if any, location upon the public highway, the middle road, was there for the building of a house before the railroad went through ; and if so, how has it been affected, if in any way, by the building of the railroad ? A. It has been destroyed.”
    Objected to; first, because whether he intended to build a dwelling house or other building upon this land, at the time of the building of the railroad, is not a question in issue in this case; the only question for the jury is the amount of damage which this land has sustained by the building of the defendant’s railroad, and what he intended to do with any particular part occupied by the railroad, has nothing to do with the question.
    The Court: “ That involves the intention of the plaintiff as to building. A building site is simply a place to put a building. Objection sustained and exception.” [6]
    Joseph Blair, a witness for plaintiff, was asked: “Q. State whether there is any eligible or proper place for a house on this middle road, west of the railroad ?” Objected to.
    
      Tbe Court: “You are allowed to show what he would, have to expend to get a road. You take the property as it was when the railroad took it. Objection sustained. Exception.” [7]
    W. C. Batchelor, having been called by plaintiff for re-examination, was asked: “ Q. How do you make up the amount of $5,500 damage resulting from the construction of the railroad through the plaintiff’s farm, and the land taken, and the farm separated by the railroad ?”
    The Court: “ If it is proposed by this question to allow the witness to present to the jury considerations that are not recognized by the rule as laid down by the Supreme Court, it will be excluded. If you mean to have the witness bring in this matter that we have ruled upon, it is simply evading this ruling of the court. The question as put is overruled. Exception.” [9]
    The Court: “ The question of the interference with the road or roads of Mr. Traut, is proper. That is an element of damage, and if the question is directed to that it is proper, but a sweeping question which will permit the witness and other witnesses to get before the jury elements of damage that are not legitimate, are not allowed. You should direct the attention of the witness in some way to the question of the roads. That part of the question as to the public road is legitimate.”
    The court refused the following point presented by plaintiff :
    “ 11. It was the duty of the railroad company to have constructed a bridge across the road, where the railroad cut away the plaintiff’s road, if the evidence shows it was necessary for the plaintiff to go to the highway, and if defendant has neglected to do so, the plaintiff is entitled to full and adequate damages in consequence of not doing so.” [2]
    Yerdict and judgment for plaintiff for $1050, and interest from July 5, 1881.
    
      The assignments of error specified the action of the court, 1, in sending the jury to view the premises after being empaneled and sworn, quoting the bill of exception; 2, in refusing plaintiff’s point, quoting it; and 3-9, the rulings on the admissions of evidence, quoting the bills of exception.
    
      William Benson, with him S. M. Brainerd, for plaintiff in error.
    The Act of April 14, 1834, § 157, P. L. 368, provides a mode for a struck jury. It is too late to move for a view during the court at which the case is for trial. Barr v. Hoffman, 79 Pa. 71.
    The element of damage involved in the 11th point should have been submitted to the jury, under the Act of Feb. 19, 1849, § 12, P. L. 84. Watson v. Ry., 37 Pa. 469.
    To introduce the private sales of farms or lands, indirectly, by the way of cross-examination, is as obnoxious to the rules of the law as if it was done directly by the defendant’s own witnesses, with the additional objection that it was not proper cross-examination, and was setting up a defense, in the way of cross-examination by the plaintiff’s witnesses. As to inadmissability of evidence of private sales, see Pittsburg and Western R. R. v. Patterson, 107 Pa. 461-64, and cases cited.
    It is no answer to the destroying of tbe building site and front to plaintiff’s farm, by allowing or proposing to allow Mm to prove wbat it would cost to build a road to some indefinite point.
    
      S. A. Davenport, with Mm Geo. P. Griffith, for defendant in error.
    Under the Act of Peb. 19, 1849, there is no expressed obligation on the part of the viewers to hear the testimony of witnesses, and yet it has been decided by this court that the viewers have that power. The Act of April 27, 1855, P. L. 365, provided for appeals from the award of viewers. The Act of April 10, 1856, P. L. 289, provided, inter alia, for a jury trial in court. Surely the Legislature could not have intended to cripple the parties by giving the right to appeal from the finding of those who had viewed the premises and heard oral evidence, to the court and jury which only had the power to hear evidence. The Act of 1856 gives the court power to make the order.
    Section 12 of the Act of 1849 provides that “ when any public road shall cross such railroad, the person owning or possessing land through which the said public road may pass shall not be entitled to require the company to erect or keep in repair any causeway or bridge for the accommodation of the occupant of said land.”
    The witness Batchelor, having testified beyond all reason, the court was justified in permitting the defendant the latitude taken in the cross examination. A man who knows nothing of the selling price and value of land near and in the immediate vicinity of the land affected, is not a competent witness to testify as to the value of land taken by the company. Therefore, it was proper for the defendant to inquire as to the witness’s information concerning the prices at which land had been sold.
    Oct. 1, 1888.
   Sterrett, J.,

The order directing the jury to view the premises, after they were empaneled and sworn, was neither improper nor illegal, and hence the first specification of error is not sustained.

Yiewers appointed under the railroad law are required “to meet at or upon the premises where the damages are alleged to be sustained,” and, having viewed the same, to “ estimate and determine whether any, and, if any, what amount of damages has been or may be sustained and to whom payable.” The manifest purpose of this requirement -is to afford the viewers an opportunity of acquiring fuller and more accurate information, as to matters on which they are required to pass, than it is possible in many cases to obtain from the testimony of witnesses alone. If the Legislature considered it so important that viewers should be thus better informed by a personal inspection of the premises, why is it not equally desirable, and, in some cases, necessary, that a like opportunity should be given to jurors who have the same duties to perform ? Such a course of procedure is certainly not prohibited by law, nor is there any good reason why it should be. On the contrary, the practice adopted in this case, appears to be authorized, in general terms, by the Act of April 10, 1856, P. L. 289, the 3d section of which gives the court, to which an appeal from the report of viewers is taken, power to order what notices shall be given connected with any part of the proceeding, and make all such orders connected with the same as may be deemed requisite.” The discretion thus vested in the court of common pleas is certainly broad enough to cover the order complained of, and it appears to have been wisely exercised in the interest of justice.

In view of the undisputed evidence, bringing the case within the proviso to the 12th section of the Act of 1849, plaintiff’s point, recited in the second specification, was rightly refused.

It is unnecessary to consider the remaining specifications of error. ¥e find nothing in either of them that calls for a reversal of the judgment. The ease was well tried, and the questions of fact involved in the issue were fairly submitted to the jury.

Judgment affirmed. W. M. S. Jr.  