Vance, supra; Pennsylvania S.V.R. Co. v. Cleary, 125 Pa. 442, 17 A. 468, 11 Am.St.Rep. 913.
I think Tomlinson's testimony was competent and all of it was properly submitted for the consideration of the jury, and in a manner that was in no way prejudicial to the defendant.
Certainly, a motion to strike out the entire testimony, in view of the entire record, would be too sweeping. Defendant's crossexamination of Tomlinson did not so destroy his evidence in chief as to justify the court in striking out all of his testimony. See Wilson v. Equitable Gas Co., 152 Pa. 566, 25 A. 635; Wadsworth v. Manufacturers' Water Co., 256 Pa. 106, 100 A. 577, Ann.Cas.1917E, 1099; Keebler, Inc., v. Land Title & Trust Co., 266 Pa. 440, 109 A. 659.
2. When the witness Phillips was on the stand, government counsel, in cross-examination, asked him this question (p. 45): "Into how many lots would you subdivide this piece of land?" The question was objected to and the court sustained the objection. Thereafter government counsel declined to question the witness any further because of the court's ruling.The court then said (p. 48): "I just ruled on your one question, that is all". It is, therefore, inaccurate to say, as is contended, that "the court committed error in sustaining the objection to a line of cross-examination which was proper and well within the scope of permissible cross-examination." The error complained of relates to one question and not to a line of questioning. I think the ruling complained of was correct. The question was not framed to test the basis of the witness' extimate, but was designed to circumvent the prohibition against introducing figures of subdivision. To have permitted this question, even on cross-examination, would have introduced a speculative feature to the minds of the jurors and would have been contrary to the well settled law of Pennsylvania. The Supreme Court of Pennsylvania said in Pennsylvania S.V.R. Co. v. Cleary, 125 Pa. 442, 452, 17 A. 468, 470, 11 Am.St.Rep. 913: "Equally improper is evidence showing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted; but it is the tract, and not the lots into which it might be divided, that is to be valued." See, also, Kleppner v. Pittsburgh, B. & L.E.R. Co., 247 Pa. 605, 93 A. 765; Rothenberger v. Reading City, 296 Pa. 423, 146 A. 104; Spring Valley Waterworks v. City and County of San Francisco, C.C., 192 F. 137, 163.
3. If the Court's rulings as to the admissibility of evidence are proper, I cannot see that the Court can set aside the jury's verdict as being excessive. One witness estimated the value at $51,000, another witness at $50,000.There would, therefore, be no legal reason to set aside a verdict of $40,000. In my instructions to the jury I quoted from Johnson's Petition, 344 Pa. 5, 8, 23 A.2d 880, 881: "Experience has demonstrated that market value of land can not be determined with exactitude and that competent and honest experts are bound to differ when they express values in dollars. Consequently, when jurors are called upon to make a final dicision as to values, they are entitled to know how the experts have arrived at their estimates, what elements they have placed in the scales in solving the problem."
I also said to the jury: "Expert witnesses are not the jury. They cannot take the stand and name a figure and then decide the case. Their opinion testimony is of such value as appeals to you. You are left to the free exercise of your own judgment. You cannot be bound by the opinion of the witness or the instruction of the court." Appeal of City of Philadelphia, 344 Pa. 439, 441, 25 A.2d 145, 146. In this case the jury did exercise their own judgment and named the figure $40,000. No valid reason has been presented why that figure should be disturbed.
Defendant argues that the Court should scan the record before the viewers to determine whether the verdict was excessive and to determine whether the ruling on the witness Phillips was proper. That suggestion must be rejected because the record made before the viewers is not before this court. The appeal from the findings of the viewers started the proceedings de novo in this court.
Careful consideration has been given to all of the arguments advanced for a new trial. I conclude that the issue to determine the value was fairly presented to the jury and their verdict will not be disturbed.
The motion for new trial is denied.
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