
    THE PHIADELPHIA & TRENTON R. R. CO. VS. ROGERS.
    Damages can be recovered for the value of a building standing so near the railroad, that the danger from fire is so great that its removal is necessary to protect other property.
    A viewer is competent to testify upon the trial of the case ia Court upon an • appeal from an assessment of damages.
    Error to the Court of Common Pleas of Bucks County, 211 July Term, 1883.
    This was a proceeding to assess damages, for taking land, and injuring‘property of the plaintiffs. It came into Court on an appeal of an award of viewers assessing damages, sustained by tbe plaintiffs below, by reason of a change in the location, and the laying of two additional tracks of the railroad by the Philadelphia & Trenton R. R. Co., whereby some land was taken, and buildings removed, and other buildings endangered, by reason of the proximity of the tracks as proposed to be laid. The Court-charged the jury as follows per :
    Watson, P. J.
    Gentlemen oe the Jury : — The issue which you have been empanelled to try arises upon a proceeding to assess damages done to. the property of the plaintiffs, situated in the Borough of Bristol, by the defendant, in taking possession of a part of it, for the purpose of constructing a railroad track upon it. You have heard the testimony in the case. It has been fully, ably and carefully argued before you by the counsel upon the one side and upon the other. They have gone over it step by step, witness by witness, and have skillfully applied every part of it bearing upon the question for your determination. The argument of the counsel, together with your own recollection of what was testified to, will bring all the facts clearly before your minds. I do not intend to spend time in going over and discussing what has been said. It is entirely for you. You will take all the evidence, examine it carefully and determine from it what are the facts in the case. You will apply to these facts the principles of law as I shall lay them down to you.
    The measure of damages in such cases as this was laid down by the Supreme Court as long ago as 1821, in the case of the Schuylkill Navigation Company vs. Thoburn. It was there held that in estimating the damages in such cases,, “the jury are to value the injury to the property at the time it was suffered, without reference' to the person of the owner or the state of his business ; and the measure of such damage is the difference between what the property would have sold for as affected by the injury and what it would have brought unaffected by such injury.” This measure of damages has been constantly adhered to and is recognized in the very last case in our books upon the subject— in the case of the City of Philadelphia vs. Linnard, 1 Out. 242. It is there said, in the syllabus of the case: “Where property is taken for public use, the damage is to be estimated as of the date when the injury was complete and the land owner was entitled to compensation, the property to be valued without reference to the person of the owner or the actual state of his business, the true measure of damages being the difference between the market value of the land as affected by the taking of part for public use .and such value as unaffected thereby. Any fact which affects the value of the land at the time of the measure is admissible.”
    Now bear in mind, in estimating the amount of damages to he awarded here, the rule for their estimation as laid down by the highest legal tribunal in this State. It is the depreciation in the marketable value of the land. What would the property have sold for immediately before the part was taken ? What would it have sold for as affected by the taking. ' The difference is the sum to which the plaintiff is entitled, together with interest from the time the land was taken. In arriving at this result, various elements must be taken into consideration, and .anything that bears directly upon this question is proper for your consideration. Many of the witnesses, after giving a general estimate of the depreciation in the value of the land, give the depreciation from .the various sources from which their estimate is made up. So far as they are proper subjects for lessening the value of the land, so far as they are concerned in producing this result, they are proper for your consideration. But where they are founded upon something that the law does not •.allow as a measure of damages, or where they are something so vague aud uncertain that they cannot be estimated, then such elements should be rejected. The market value of the property is the test. What would the property have sold, for immediately before the part was taken? What would it have sold for, as affected by the taking ? This is the question for your solution. .It is said in the last case from which I read, “though the property were ruined for its former use, if worth as much or inore for another use, the owner suffered no damage for which he can recover. The pivotal inquiry is as to how much the property as it was when injured was diminished in value.” That is in market value. That is the pivotal point of your inquiry. Upon the result of that.inquiry must your verdict be based.
    
      There is an element which has been sought to be brought into this case which gives rise to some difficulty, and that is the depreciation in the value of the land owing to the increased ' danger from fire. I will refer to that and lay down to you what-I think is the true rule upon the subject in answer to some points that have been submitted by the defendant.
    5. That in estimating the amount of damages the jury cannot take into consideration the value of the stables removed by the plaintiffs, except the one which was partly in the line of tlienew track.
    
      Answer. I cannot so instmct you.
    6. That there is not sufficient evidence in the case to submit to the jury upon which they can find a justification for removing the two stables which were not in the line of the new improvement, in anticipation of danger to them from the running of trains, which would be necessarily so imminent that no man of common prudence would use them as stables, but be driven from them and be compelled to provide himself with stables, elsewhere.
    
      Answer. I cannot so instruct you.
    7. That the jury cannot compensate the plaintiffs for the risk Of fire to the stables which were not in the line of the new tracks,, and they cannot hold the company liable for any thing that might be burned, nor for the risk of such burning.
    
      Answer. A railroad company is liable at common law for the-damage done by fire occasioned by the negligent management of its locomotive engines; and therefore it is plain that for • the risk of such damage no compensation can be allowed a¡t the taking of the land for the construction of the road. Nor can the ordinary risk of fire being communicated from locomotives to buildings, be taken into consideration in estimating the damages sustained by the owner of land arising from the construction of a railroad, over it, because of the uncertain and contingent nature of such-damages; Sunbury and Erie Eailroad Company vs. Hummell, 3-Cas., 99 ; Lehigh Yalley Eailroad Company vs. Lazarus, 4 .Casey 208. But if from the proximity of the road to a building the danger from fire is so great and imminent that a man of common prudence would not use it for the purpose for which it was designed: and occupied, and the market value of the property is thereby directly and materially depreciated, then such danger is an element which the jury may take into consideration in estimating the amount of damages sustained; Railroad vs. Stauffer, 10 Sm., 374.
    8. That the risk of fire being communicated from locomotives to any buildings now erected, or that may be erected, or which were erected when this proceeding to assess damage s was commenced, on the property of plaintiffs, cannot be taken into consideration by the jury in estimating the damages.
    
      Answer. The risk to buildings erected since the land was taken, or these proceedings were commenced, or which may hereafter b.e erected upon the plaintiffs’ land, cannot be. taken into consideration in estimating the damages to be allowed.
    As to buildings standing at the time the property was taken, this point is answered in the answer to the last preceding point.
    9. That the testimony of the witnesses who gave opinions of the gross amount of damages sustained by plaintiffs, and who admitted that the amount was largely made up of estimates of the risk from fire being communicated to the buildings and other property of plaintiffs, must be rejected by the jury in estimating the amount of the damages.
    
      Answer. I cannot so instruct you. The value of the testimony is entirely for your consideration.
    10. That all estimates by witnesses in which they have blended elements which cannot be considered in computing the damages with those which are proper, must be entirely excluded from the consideration of the jury.
    
      Answer. If a witness has blended elements which are not proper to be considered in the computation' of damages, such elements should be rejected, and if they are so inseparably connected with the other elements which are proper to be considered that they cannot be distinguised from each other, then the whole should be rejected and disregarded.
    11. That the jury cannot take anything into consideration in estimating the damages except the property taken, injured and destroyed.
    
      Antwer. This is true.
    
      12. Nothing which is speculative and conjectural can be taken into consideration in estimating the damages.
    
      Answer. This is true.
    13. The jury cannot take into consideration any supposed increase in the rates of insurance on buildings and other property of the plaintiffs as an element in estimating the amount of damages, and any evidence which has been given, based on risks from fire and increased rates of insurance, must be rejected by the jury in their estimate of the damages.
    Answer- This is true. The evidence on the subject is not enough to justify you in taking the increased cost of insurance into consideration in estimating the damages to be allowed.
    On March 17th, 1883, judgment was entered against the defendant for $10,070. The Court had allowed the following questions to be asked the witnesses: State what effect, if any, the change in the location of the track, had^pon the other stables, which stood upon land not actually taken?
    2nd. What was the value of the stables ? 3d. Are the stables in consequence of the proximity of the road rendered useless as stables, and would they be unsafe for stabling, because of the danger from fire ? The Court had admitted the testimony of Jesse G-. Webster, who was a viewer in the case.'
    The R. R. Company then took a writ of error, complaining of the charge of the Court, and the admission of evidence, above stated.
    
      George and H. Lear, Esqs., for plaintiff in error
    argued, that a viewer is not a proper witness; Dorlan vs. The East Brandywine and Waynesburg R. R. Co., 46 Penna. 520. That two of the other stables were not injured or destroyed by the company, but were torn down by the plaintiffs below, and they had no right to recover damages for possession. The Court did not instruct the jury properly relative to damages, for increased risk by fire ; Sunbury and Erie R. R. Co. vs. Hummell, 27 Penna. 99; Lehigh Valley R. R. Co. vs. Lazarus, 28 Penna. 303; Wilmington and Reading R. R. Co. vs. Stauffer, 60 Penna. 374.
    
      George Ross, L. L. James and B. F. Gilkson, Esqs., for defendants in error
    argued, that Webster, the viewer, was a competent witness; Plank Road Company vs. Thomas, 20 Penna. 91; Dorian vs. East Brandywine & Wanyesburg R. R. Co., 46 Penna. 520. The company were liable to damages to the stables, which had been removed by the plaintiffs. Witness after witness testified that ■they had been injured. The rule covers everything, which tends to cheapen the land, through which the road passes, and must necessarily include, not only damages which are direct, but those which are indirect; Hoffer vs. Penna. Canal Co., 87 Penna. 221. The judge charged the jury as to damages for increased risk of fire, substantially as was done in Wilmington & Reading R. R. Co. vs. Stauffer, 60 Penna. 374.
   The Supreme Court affirmed the judgment of the Common Pleas'on May 26, 1884, in the following opinion:

Per Curiam.

We are of the opinion that the Court below committed no error in the trial of this case. There are no less than ten assignments or error, but they contain nothing that is novel, or upon which this Court has not repeatedly passed. The ninth assignment embraces pretty much the whole case of the plaintiff in error, for if the danger of fire from the proximity of the proposed new tracks, was to be regarded as an element to be considered in the assessment of damages. The other instructions and rulings of which complaint is made, necessarily result from and depend upon it. As however, the case of the Wilmington & Reading R. R. Co. vs. Stauffer, 60 Pa. 374, thoroughly covers the ruling here excepted to, we would but spend time uselessly in a re-discussion of the question thus settled. This point out of the way, the proof of the proximity of the railroad, and the necessity for the removal of the stables in consequence of the danger from fire were properly submitted to the jury as questions for their consideration. So, for the purpose of arriving at the damages to which the plaintiffs were entitled, proof was admissable to show that the danger to which the buildings would be exposed when locomotives began to run over the new tracks, was so obvious that their removal was demanded by . the ordinary dictates of prudence.

The judgment is affirmed.  