
    WICHITA FALLS & W. RY. CO. OF TEXAS v. WYRICK.
    (Court of Civil Appeals of Texas. Amarillo.
    April 13, 1912.)
    1. Trial (§ 191) —Instruction—Assuming Facts.
    , An instruction in condemnation proceedings that, in determining the injury or benefit to the land not taken, the jury should consider the effect upon the convenience of the place, the alterations required, and the effect upon the value of the premises and upon its use as a home from running trains across it, assumed the existence of the facts mentioned and was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    
      2. Eminent Domain (§ 222) — Condemnation Proceedings — Instruction — Evidence.
    In proceedings to condemn a railroad right of way, it was error to instruct that the jury 'might consider in determining the injury or benefit done to the land not taken, the evidence as to the increased danger to live stock, buildings, fences, crops, or grass, without limiting such evidence to its effect upon the market value of the land.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 562-567; Dec. Dig. § 222.]
    3. Evidence (§ 474) — Opinions—Competency op Witnesses — Value op Land.
    Where a witness in condemnation proceedings testified that the landowner procured him to look over the land with reference to testifying in the ease, and that he went upon the land and saw how the railroad was surveyed, but had not been back since and did not know how the road ran across the place, and where he did not state that he knew the market value of the land, he was not competent to testify as to its value; it not appearing that he had any means of knowing the value of the land after as well as before the construction of the railroad.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    4. Evidence (§ 113) — Market Value — Price.
    The price paid for land was not evidence of its market value.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. § 113.]
    5. Eminent Domain (§ 203) — Condemnation Proceedings — Evidence—Admissibility.
    In determining the injury or benefit to the land not taken in proceedings to condemn a railroad right of way, a witness whose property is similarly situated may testify as to the effect the construction of the railroad has had upon his own property.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 542; Dec. Dig. § 203.]
    6. Appeal and Error (§ 1033) — Harmless Error — Statement by Court.
    A statement made by the court in passing on the competency • of certain questions, that they were proper on cross-examination, but that the failure of witness to answer went to the weight of his evidence and the reasonableness of his claims, being in the complainant’s favor, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    7. Eminent Domain (§ 203) — Condemnation Proceedings — Estimation oe Bene-eits and Damages — Evidence.
    In determining the injury or benefit done to land not taken in proceedings to condemn a railroad right of way, the inquiry as to the value of the land should be confined to its market value immediately before and after the taking, and evidence as to its market value at the time of the trial is not admissible.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. § 542; Dec. Dig. § 203.]
    Appeal from Collingsworth County Court; Marion Reynolds, Judge..
    Condemnation proceedings to secure right of way by the Wichita Falls & Wellington Railway Company of Texas against Jim Wy-rick. From the judgment determining the amount of the award, the company appeals.
    Reversed and remanded.
    R. H. Templeton, of Wellington, and Theodore Mack, of Ft. Worth, for appellant. Lackey & Lackey, of Wellington, for appel-lee.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HALL, J.

This appeal grows out of an effort on the part of appellant railway company to condemn appellee’s land for right of way purposes. The ease was tried in the county court before a special judge, resulting in a judgment for $750 based upon the verdict of a jury.

The first and second assignments of error, submitted together, complain of that part of the third paragraph of the charge wherein the jury are instructed that, in determining the injury or benefit done to the remainder of the land not actually taken for right of way purposes, they should take into consideration- the effect upon the convenience of said place, of the alterations in fences, fields, pastures, and length of rows, also the establishment of fences along the right of way, and also the effect upon the value of the premises and the effect upon its use as a home occasioned by running trains across it, the attendant danger, if any, of injury to grass by fire, and the danger, if any, of killing or injuring stock by trains; and the first complaint is that it is upon the weight of the evidence and invades the province of the jury. It will be observed that the court does not tell the jury if they should find from the evidence that these elements of damage exist then they should consider them, but the charge is so framed that it assumes the existence of such facts and is therefore erroneous.

Complaint is further made because the court instructs the jury that they might take into consideration “the attendant danger, if any, of injury to grass by fire, and the danger, if any, of killing or injuring stock by trains,” because such damages are not recoverable in a proceeding to condemn land for railway purposes, but are torts which may or may not happen in the future, and for which the law affords the defendant relief in the event such damages should occur. This is a question upon which there is a great diversity of opinion. We have concluded that the correct rule is this: The danger to which live stock upon the farm will be exposed, and the danger from fire to buildings, fences, crops, or grass, in so far as it affects the market value of the farm, may properly be considered, but such dangers cannot be considered by the jury as elements of damage aside from the effect they may have upon the market value of the land. It is to be borne in mind that compensation is not to be given for increased exposure to fire nor for increased insurance rates, nor for probable losses by fire in the future for which no recovery can be had, but simply for depreciation in the market value of the property by reason of the danger from fire. The evidence should therefore be limited to showing all the facts in regard to the situation of the property and improvements, relatively to the railroad. In the case of G., C. & S. P. Ry. Co. v. Eddins, 60 Tex. 656, it was held that an instruction which in substance directed the jury in making their estimate of the damage sustained by appellee from the construction and operation of the road, along the streets of the city of Brenham, to reject entirely from their consideration all of the testimony of the witnesses going to show injury or damage resulting to appellee from sparks of fire from the engines of appellant, was properly refused. In our opinion, the court erred in instructing the jury that these elements of damage should be considered by them in determining the question of injury or benefit, but should have limited it as a matter affecting only the market value of the premises. What has been said also ^disposes of the third assignment.

The fourth assignment complains of the action of the court in permitting the witnesses Adams and Black to testify that they thought Wyrick was damaged about §1,000, because the witnesses had not qualified themselves to express any opinion as to the damages, and because their testimony was purely a guess. We understand the rule to be that a witness should not be allowed in this character of a proceeding to state the amount of the damages in a round sum as was done in this case, but that the inquiry should be confined to the market value of the land before and after taking. S. A. & A. P. Ry. Co. v. MacGregor, 2 Tex. Civ. App. 586, 22 S. W. 269; Bell County v. Flint, 91 S. W. 329; Railway Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 6 L. R. A. 298, 22 Am. St. Rep. 42; C. R. & I. Railway Co. v. Douglas, 33 Tex. Civ. App. 262, 76 S. W. 449. While witnesses may not be required to be experts in a strict and severe sense of the term in order to give opinions on market value, and while there is no inflexible rule defining how much a witness must know in order to be so qualified, yet it must be made to appear that he had means for forming an intelligent opinion superior to those of the jurors, and that his opinion was derived from a knowledge of the character of the property in controversy and the manner and direction in which the road had been constructed across it. D. & P. S. Ry. v. Scholz, 44 S. W. 560; Cluck v. H. & T. O. Ry. Co., 34 Tex. Civ. App. 452, 79 S. W. 80. ’ And before he can be heard to give his opinion concerning the amount of the damage it should appear from his testimony that he was acquainted with the value of the land without the road upon it, and the extent to which such value had been diminished by the road. The witness Black testified that appellee procured him to look over the land with reference to testifying in the case; that he went over to appellee’s farm and saw how the road was surveyed; had not been back since; did not know how the road ran across the place. The testimony of the witness Adams is to the same effect. They did not testify that they knew the market value of the land. We think the objections made to-their testimony should have been sustained-For the same reason the testimony of appel-lee and of the witness Kessler, upon the question of his damages, should have been excluded, and the fifth, sixth, and seventh' assignments of error are sustained.

Appellant contends that deeds to lands which had been purchased by the witness Wells about the time of the condemnation in question were admissible upon the question of market value because the lands conveyed in said deeds were in the vicinity of appel-lee’s property. We cannot concur in this contention, and the court did not err in excluding the evidence. The price paid foi-land is not evidence of market value. T. & Ft. S. Ry. v. Neches Iron Works, 122 S. W. 64.

It having been shown that the witness Atteberry was a neighbor of appellee, that he was acquainted with appellee’s land and the way in which the railroad crossed it, had been on the land both before and after the construction of the road, and that the same railway ran across his land and within a few yards of his door, appellant sought to elicit from this witness testimony as to the effect upon the comfort of his home and upon the value of his land occasioned by the smoke, dust, and noise from passing trains. It has been held that, where the witness’ property is similarly situated, he may testify as to the effect the construction of the railroad has had upon his property. Kirby v. P. & G. Ry., 39 Tex. Civ. App. 252, 88 S. W. 281; Cluck v. Railway, 34 Tex. Civ. App. 452, 79 S. W. 80; C. & M. C. Ry. Co. v. Ritter, 1 White & W. Civ. Cas. Ct. App. § 267; Calvert W. & B. V. Ry. Co. v. Smith et ux., 68 S. W. 68; G., C. & S. F. Ry. v. Brugger, 24 Tex. Civ. App. 367, 59 S. W. 556.

Under its ninth bill of exception, appellant complains that the court in ruling upon whether or not a certain witness should be required to itemize his damages stated that the questions were proper on cross-examination, but that the failure of the witness to answer them went to the weight of his evidence and the reasonableness of his claims. The court in ruling upon the admission or rejection of testimony should do so without comment, and, while the statement in question was improper, we are unable to see that appellant was injured, as the language used seems to be in appellant’s favor. The tenth assignment is therefore overruled.

The eleventh assignment of error complains of paragraph 3 of the charge upon the measure of damages to the remainder of the tract not taken, and the twelfth assignment is to the alleged error of the court in not granting appellant’s motion for a new trial, because the verdict is excessive in that the jury were permitted to consider the present market value of the land instead of the market value at the time of the taking in estimating their damages.

Evidence of the market value of the land at the time of the trial should not have been admitted, and the inquiry should have been confined to its market value immediately before and immediately after the taking and appropriating for railroad purposes. What has been said also disposes of the thirteenth, fourteenth, and fifteenth assignments of error.

Because of the errors pointed out, the judgment is reversed, and the cause remanded.  