On Petition for Rehearing.
Mr. Justice Eakindelivered the opinion of the court.
By motion for rehearing it is strongly urged that this decision conflicts with and is contrary to the holding in the case of Pacific Railway & Navigation Co. v. Elmore Packing Co., 60 Or. 534 (120 Pac. 389). There is no question but the holding in that case states the law correctly, and the reason it was not referred to in the opinion in this case was because the facts in the two cases are not similar. The question asked and answered in that case, which was held error, was:
*409“State what, in your opinion, is the damage that defendant will sustain by the appropriation of the right of way involved in this case and shown by your map, * * his buildings and land.”
The witness answered:
“Two hundred and fifty dollars, I would judge from the settlement we have made with adjoining property, would be ample for the land, and $150 for the buildings; $400, total”
—which was clearly error.
In the bill of exceptions in this case it is said that the witness Simmons was called as an expert witness, and duly qualified as such for the purpose of showing the increased market value of the property of defendant resulting from the opening of the street, and he was asked:
“What would you consider the benefit at that time to the south 20 feet of lot 2, block 31, by opening and extending Ainsworth Avenue?”
In the motion for rehearing counsel admits that the witness might be allowed to give his opinion to the jury as to the increased market value of the lot, and that such would be proper expert testimony. The question actually asked was:
“What would you consider the benefit to the lot by opening the street?”
The objection did not seek to confine the question to the increase of the market value, and was to the. effect that the question was usurping the province of the jury. When the question was repeated, counsel further objected that it called for benefits without reference to damages, thus showing that the objection was very indefinite. The question, in substance, was, How much will the value of the lot be increased by the opening of the street? not, as in Pacific Railway & Navigation Co. v. Elmore Packing Co., 60 Or. 534 (120 Pac. 389, “What, in your opinion, *410is the damage that defendant will sustain,” etc.? which covers the whole issue. We think the opinion in this case comes clearly within the rule as announced by this court in the cases cited therein, and in no way conflicts with or tends to weaken the rule in the case above cited. In that case the question asked the witness was equivalent to asking what verdict the jury should render. Not so in this case, but rather what benefit the street would be to the lot—how much greater would be its value. In referring to this subject Mr. Justice McBride in Elliott v. Wallowa County, 57 Or. 243 (109 Pac. 133: Ann. Cas. 1913A, 117), says:
“It has been held in this State that a witness will not be allowed to state upon a question of general damages the amount of such damage [referring to the very point covered by the opinion in the case of Pacific Railway & Navigation Co. v. Elmore Packing Co., 60 Or. 534 (120 Pac. 389)]. * * But this court seems to have held, in cases of like character, that witnesses, otherwise competent, may testify directly as to the amount of damages. * * But where this is permitted the witnesses, while not technically experts, must show knowledge of the facts beyond that which the jury would be able to derive from testimony as to physical facts.”
The witness must show some special and actual knowledge as to value.
The motion for rehearing is denied.
Affirmed: Rehearing Denied.