Guinn v. Iowa & St. Louis Railway Co.

Deemer, J.—

1. eminENt do. dam-aden¿e.ev1’ The case has once before been in this court. See 125 Iowa, 301 . Upon the second trial witnesses were permitted, in answer to hypothetical questions, †0 £aiie consideration “ all the surround-main: ing circumstances as they saw them after the railway was constructed ” and “ the entire situation and sur- . roundings, of the farm as you [they] saw them ” and “ the location of the road with reference to Horseshoe lake.” This is complained of. In the same questions, however, the witnesses were directed to assume that the railway was properly constructed, and that an adequate crossing would be put in. We see nothing in the questions of which defendant may complain. Bell v. C., B. & Q. R. R., 74 Iowa, 343 ; King v. Midland Co., 34 Iowa, 459 . Dreher v. R. R., 59 Iowa, 599 . The question assumes proper construction of the road and an adequate crossing. All other matters which *682 bear directly upon the market value may be considered. See cases above cited.

2. Same. II. One of the witnesses, in estimating damages, took into consideration the character of crossing which had already been constructed, which was at grade. Of this defendant complains. There was no error here for several reasons: First. Because defendant had already indicated the character of crossing it would furnish. Doud v. R. R., 76 Iowa, 439 ; Cummins v. R. R., 63 Iowa, 397 . Second. Because the witness took into account as good a crossing as defendant could construct, considering the nature of the ground. Third. The matter was fully and properly covered by the instructions of the court. Pingery v. R. R., 78 Iowa, 438 .

8' Evidence:°# prejudice. III. There was an attempt to show that plaintiff had an underground crossing at what was known as “ Spring Creek Bridge.” Defendant produced witnesses to show the condition of the soil underneath this bridge. Plaintiff claimed that the soil was soft and “ miry.” Defendant’s witnesses testified that it was good soil; that when it was wet it got a little soft, but that it dried out quickly. They were then asked if they had seen anything passing under the bridge, or any use put of the ground from which they were able to tell whether the soil was miry or solid. This question they were not permitted to' answer. In this there was no prejudicial error. They had already stated that they knew the situation, and had testified as to the character of the soil. No prejudice resulted from the ruling in any event.

IV. Defendant asked an instruction to the effect that the jury should assume, in fixing plaintiff’s damages, that an adequate and sufficient crossing would be provided, and that in estimating the damages they should assume that either a grade or undercrossing would be provided. This was refused, but one was given-by the court upon its own motion which completely and fairly covered the same ground.

*683

4. view op premises: instruction, The jury was permitted to view tbe premises, and in one of its instructions tbe trial court said: “ The purpose of viewing tbe premises is to enable tbe jury better to understand tbe testimony of tbe witnesses re- . ° specting the same, and more intelligently apply such testimony to tbe issues before tbem, and not to make tbem silent witnesses in tbe case. You will consider tbe evidence in tbe light of your view of the premises, but you must determine tbe facts of tbe case from tbe evidence alone. You must not base your verdict in any degree upon your examination of the premises.” This is in exact accord with tbe rule which prevails in this jurisdiction. Close v. Samm, 27 Iowa, 503 ; Thompson v. City, 61 Iowa, 187 ; Morrison v. R. R. Co., 84 Iowa, 663 .

5. Allowance OP interest. V. Lastly, it is asserted that tbe court erred in allowing interest on tbe verdict for tbe reasons — first, that at tbe time allowance was made tbe district court bad lost 'jurisdietio11 of the ease by reason of the appeal; and, 86(3011<^ because in no event could interest be allowed until defendant took possession of tbe land. Tbe rule in this state is that interest is to be awarded from tbe time tbe railway takes possession. Van Husen v. R. R., 118 Iowa, 366 ; Hayes v. R. R., 64 Iowa, 753 ; Hollingsworth v. R. R., 63 Iowa, 443 . There was no testimony as to when the railway took possession, and no basis for an allowance of interest. Moreover, after appeal to this court, tbe district court had no right to entertain a motion to correct an error in tbe proceedings; it was without jurisdiction. Levi v. Karrick, 15 Iowa, 444 ; McGlaughlin v. O’Rourke, 12 Iowa, 459 ; Jamison v. R. R., 87 Iowa, 265 ; Turner v. Bank, 30 Iowa, 191 .

6. Appeal: correction of judgment. Tbe trial court was in error in sustaining plaintiff’s motion to correct the judgment entry and in . , J o J including interest upon the verdict. Tbe judgment should be for $1,550, as originally rendered.

There is no. other error in the proceedings, and the orig *684 inal judgment is affirmed. Defendant will pay all the costs of this appeal.

Reversed' in part and affirmed in part. ■