Hoffman v. Bloomsburg etc. R.

Citations

• 143 Pa. 503
• 22 A. 823
• 1891 Pa. LEXIS 940

Syllabus

<p>(a) The plaintiff, in an action against a railroad company to recover damages for the taking of and injury to his lands, had executed an agreement in writing that lie would release “to the company which undertakes to construct such road, the right of way of lawful width ” through his land.</p> <p>(b) As to damages, the agreement provided as follows: “The damages to be assessed when the road is located, and the amount of said damages to be paid in stock of said railroad. Cost of fencing not included in damages, provided no damage is done to my buildings, race, or waterpower : ”</p> <p>1. It was error to charge that the proviso related to the whole agreement, and that if no damage was done to the plaintiff’s buildings, race, or water-power, the jury could find that the general damage was payable in stock; and that otherwise, it would be payable in cash.</p> <p>2. The proper construction of the proviso is, that the cost of fencing shall not be included in damages, if no damage is done to the buildings, race, or water-power; that is, if no damage is done to the buildings, race, or water-power, no damage is to be allowed for the cost of fencing.</p> <p>3. Defendant company was not estopped from alleging said instruction for error, by the fact that on the trial its counsel made a verbal statement, when offering the agreement, to the effect that if the water-power was injured the damage was to be a money assessment: Benson v. Maxwell, 105 Pa. 274; Ritter v. Sieger, 105 Pa. 400, distinguished.</p> <p>4. It was error, also, to instruct the jury that, “under the agreement, it was the duty of the defendant so to construct its railroad as not to interfere with the plaintiff’s water-power and race.” The proviso did not prohibit the company from interfering with the water-power and race.</p> <p>5. As it was shown that there were several buildings on the land, in close proximity to the railroad, the fact that specific evidence was not given in relation to danger from fire, did