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The MIDLAND Pacific RAILROAD Co. v. McCARTNEY.

Dickerson, 17 B. Mon. 173-180; Louisville & Nashville Railway v. Thompson, 18 B. Mon. 735.

The rule governing the admission of evidence seems to be—to allow only strictly legal evidence to be received, such as would be admissable in the trial of similar questions before a jury in ordinary cases.—1 Redfield on Railw. sec. 72; Troy & Boston Railwayj v. Northern Turnpike Co., 16 Barb. 100; Rochester & Syracuse Railway v. Budlong, 6 How. Pr. 467; Lincoln v. Saratoga & Schenectady Rail. way, 23 Wend. 425, 32.

And the witnesses cannot be allowed to give their opinion of the value of the land or material taken.—Montgomery & West Point Railway v. Varner, 19 Alab. 485; Concord Railway v. Greely, 3 Foster, 237; Buffman v. New York & Boston Railway, 4 Rh. 1. 221; Cleveland & Pittsburgh Railway v, Vanhorn, 18 III. 257; Dorlan v. E. Br. & Wav. Railway Co., 46 Penn. St. 520; East Pa. Railway Co. v. Heister, 40 Penn. St. 53; East Penn. Railway Co. v. Hottensteine, 47 Penn. St. 28.

Preliminary surveys may be made without compensation.—1 Redfield Railway, sec. 66, p. 241; Cushman y. Smith, 34 Maine, 247; Polly v. S. W. Railway Co., 9 Barb. 449; Bloodgood v. Mohawk & H. Railway, 14 Wend. 51; S. C. 18 Wend. 9; Statutes revised, of Nebraska, sec. 81, p. 217.

Who shall go forward in the pleadings, proof and argument, on the trial.-1 Greenleaf Evi. scc. 76, 77; Connecti. cut River Railway v. Clapp, 1 Cush. 559; 1 American Railway cases, 450; Mercer v. Whall, 52 Q. B. 447; 1 Redfield Railway, sec. 71, p. 268.

The fact that a juror is a citizen of a town, city or county, and tax payer therein, against which suit is brought to recover judgment, does not render him incompetent to sit as a juror in that suit; nor does the fact that a man is a tax payer and citizen of a town, city, or county which may

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THE MIDLAND PACIFIC RAILROAD Co. v. MOCARTNEY.

be liable, or may become liable to pay the judgment in a given case, if rendered, render him incompetent to sit as a juror in the trial of that case. He has no such interest in the event of the suit as will incapacitate him to sit as a juror.Comms. of Clermont Co. v. Little, 3 Ohio, 289.

Party claiming damages must show title.Henry v. The Dubuque & Pacific Railway Co., 2 Iowa, 288.

1. N. Shambaugh, for defendant in error.

The defendant in error insists that no errors were committed by the court below, and relies upon the following points and authorities :

I. But two points are made in the motion for a new trial, and none others will be considered by this court. All the errors complained of must be assigned and relied on in the motion for a new trial, and if the attention of the court below is not called to the same by such motion, will be considered waived.—4 Mo. 544 ; 6 Mo. 162; 9 Mo. 493; 10 Mo. 515; 11 Mo. 623; 13 Mo. 444, 453; Hilliard on New Triols, 12 and 16.

The motion for a new trial was properly overruled. The damages are not excessive.—20 Mo. 272, 567; 21 Mo. 354.

The evidence fully sustains the verdict, and this court will not set aside a verdict if there is any evidence to support it.—1 Mo. 13; 3 Mo. 464 ; 7 Mo. 292, 220, 445; 4 Mo. 295; 5 Mo. 489; 6 Mo. 489, 61, 211; 8 Mo. 642; 9

9 Mo. 268 ; Mo. 380; 19 Mo. 241; 11 Mo. 264; Hilliard on New Trials, 340; 6 Ohio, 456; 12 Ohio, 151; 4 Ohio, 566 ; 2 Ohio, 44, 53; 12 0. S. 146.

But if the rulings of the court below upon the other points made in the plaintiff's petition were properly before this court for consideration and review, the defendant insists that no errors were committed by the court below, and relies upon the following points and authorities :

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26

THE MIDLAND PACIFIC RAILROAD Co. 0. McCARTNEY.

I. The court committed no error in excluding tax paying citizens of Nebraska city from serving as jurors in this cause.—11 Mass. 468; 2 Mass. 543; 13 Mass. 339; 4

Gray, 427; 11 Mo. 247.

II. There was no error in requiring the parties to plead de novo in the District Court, and no exception was taken to the ruling of the court.

III. The defendant would have failed if no evidence had been given, and he was entitled to the opening and conclusion. Section 283, Code. Section 97, act concerning corporations.

IV. There was no error in permitting defendant to testify to the ownership of the land. The title was not in issue. . The plaintiff asserted and affirmed defendant's title by proceeding against him to have the damages assessed. Section 97, act concerning corporations.

V. There was no error in admitting the evidence as to the damages done to the land and improvements. The evidence of defendant and his witnesses was rightly admitted. The evidence offered by plaintiff, relative to the price of land at public sales, was properly excluded.

VI. The rule or measure of damages laid down by the court and the instructions given by the court were correct, indeed more favorable to the plaintiff than to the defendant, and it has no cause of complaint.—5 Pick. 182 ; 15 Pick. 564, 198; 17 Pick. 58 ; 4 Cush. 291, 292 ; 5 Black. 386; 25 Mo. 258, 535, 544; 7 Allen 322 directly in point ;

Red field on Railways, 133–138, 148–155; 692–697 App.

In estimating the damages the jury were properly instructed to consider the value of the land at the time the road was located over it, and to give interest from that time.-7 Allen, 326.

VII. The instructions asked by plaintiff were properly refused.

VIII. Judgment was properly rendered against the plain.

THE MIDLAND PACIFIC RAILROAD Co. v. MCCARTNEY.

tiff. When the damages were assessed the plaintiff became entitled to the use of the land taken, and the defendant to the damages assessed, and the plaintiff could not be com. pelled to pay the damages and costs, except by judgment and execution.—12 Mo. 328 ; 22 Pick. 363; 2 Metcalf, 559. Section 97, act concerning corporations.—Redfield on Railways, 129, sec. 17–684, sec. 98.

IX. The verdict is for the right party, and this court will not disturb it.—Graham & Waterman on New Trials, vol. 2, 48 and 49; 1 Ohio, 330, 357; 5 Ohio, 375, 385, 109; 4 Ohio, 5; 5 Ohio, 89.

LAKE, J.

In the District Court this case was tried to a jury on an appeal from an assessment of damages for the right of way for a railroad track through the defendant's lands.

A verdict was rendered by the jury assessing the damages at the sum of $599.50. The plaintiff filed a motion for a new trial on the ground that the damages were excessive and not sustained by sufficient evidence. The court overruled the motion for a new trial and entered judgment on the verdict against the railroad company, to which exceptions were duly taken.

Of the alleged errors this court can only consider that which relates to the rendition of judgment on the verdict of the jury. As to the sufficiency of the evidence to sustain the verdict it is well settled that the appellate court will presume the verdict right, and the evidence ample to sustain it until the contrary is made to appear. This should be done by embodying all of the testimony that is produced on the trial bearing upon the point of dispute, in a bill of exceptions, so that it shall become a part of the record of the case. Considerable testimony was thus preserved and is before us, but looking into the record we are

THE MIDLAND PACIFIC RAILROAD Co. v. MCCARTNEY.

unable to say that this is all. There may have been very much more presented to the jury which had a direct bear. ing upon the question of damages, and contributed materially to produce the result to which the jury arrived. Where all the evidence is not in the record the ruling of the court in refusing a new trial on the ground that the verdict is not sustained by sufficient evidence is presumed to be correct.

It is also objected that the court below erred in the admission of illegal testimony and also in the instructions given to the jury. These points were not made, however, in the motion for a new trial. If the court had committed the errors suggested, they would have been good grounds for a new trial, but no complaint of such errors having been made, nor the attention of the court directed thereto in the motion for a new trial, we must consider them as waived.Stump v. Fraley, 7 Ind. 679; Zebnor v. Beard, 8 Id. 96; State v. Swarts, 9 Id. 221; Howes v. Holliday, 10 Id. 339; Kent v. Lawson, 12 Id. 675; Gray v. Stiver, 24 Id. 174; Lures v. Balte, 26 Id. 343; Stillwell v. Chappell, 30 Id. 72.

A reference to the cases here cited shows an unbroken current of decisions in support of the position which we are constrained to take.

The Code of Indiana, in its provisions relating to new trials, is substantially the same as our own. The language used is nearly identical, and makes errors of law occuring at the trial, and excepted to by the party making the application, a ground of a motion for a new trial.

In the case of the State v. Swarts, above cited, Judge STEWART, in his opinion, says: “It is due to the lower court that its errors, if any, be pointed out there, so that it may retrace its steps while the record is yet under its control.” I am aware that in Earls v. Pittsburgh R. R. Co., 12 Ohio State, 621, a different construction is given to the same statutory provision. But with the utmost respect for

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