140 S.W. 374 | Tex. App. | 1911
The first proposition submitted under these assignments is that said charge unduly emphasized the issues to the prejudice of plaintiff, and had the effect of setting aside the general charge, which it is alleged was correct, and should have been followed by the jury. The general charge quoted by appellant and referred to in said assignments made no reference to injuries accruing from the deposit of Johnson grass.
The defendant was entitled to have the issues upon its behalf presented in an affirmative manner, and we do not think that plaintiff's proposition is sound. Railway Co. v. Ayres,
Appellant's second proposition is that said special charge was erroneous, for the reason that it is unlawful for a railroad company to permit Johnson grass to mature and go to seed on its right of way; *376
therefore, that plaintiff was entitled to damages if Johnson grass growing and maturing on the right of way was deposited on plaintiff's land by natural causes. The law in this regard referred to by appellant is chapter
Independent of the statute, there will be no liability on the part of a railroad company for permitting Johnson grass or other noxious vegetation to grow on is right of way where the same is spread upon adjacent land by wind, water flowing in its natural course, or other natural causes. Railway Co. v. Oakes,
Appellant complains of the charge of the court as to the measure of damages as to the deposit of Johnson grass and debris on appellant's land, which the court states would be such sum of money as would be necessary to expend in putting the land in the condition it was immediately before said injury. The appellant did not request any special charge on this subject, and the jury found against appellant as to any damages on account of the deposit of Johnson grass, débris, etc., for which reasons we overrule appellant's said assignment of error. Railway Co. v. Bolton,
Appellant complains of the charge of the court with reference to the measure of damages occasioned by injury to his land, which charge is as follows: "If you find the plaintiff's land was injured, as alleged, by the negligence of the defendant in causing the soil to be washed therefrom, the measure of his damage would be such sum of money as you may find that he sustained therefrom and as a fair compensation for such injury, if any, taking into consideration the less productive condition of the same, if you so find it to be." This charge is awkwardly worded, but no objection is made thereto on that account. The propositions submitted under the assignment of error in this regard are that the charge was erroneous in not stating for how long the unproductive condition could be considered, and that said paragraph of said charge contemplated that the land injured by the flow of water thereon could not be repaired, and that the same did not allow the plaintiff the value of the use of the land during the time of reclaiming the same to a condition susceptible of cultivation. We think the charge was correct in stating, as was evidently intended by said charge, that the measure of damages was such sum of money as would equal the difference in the value of the land just before and just after the overflow, and that, in estimating said value, the jury should take into consideration the less productive condition of the same. Certainly there was no affirmative error in this charge, and, if the plaintiff was not satisfied therewith, he should have asked additional charges. The charge is not subject to the criticism against it contained in the propositions in reference thereto.
Appellant complains of the action of the court in permitting the defendant to read in evidence a portion of the petition of the former suit by appellant against the railway company for damages to said land; the objection to the admission of said petition being that it did not claim permanent injury to the land involved in said suit. Said petition alleged, among other things, that the defendant in that suit "permitted Johnson grass to be planted and sown on said embankment which, upon the washing away of the tops or ends of said embankment, are washed upon and scattered over the lands of plaintiff, poisoning and injuring the same and destroying its fertility, and increasing the difficulty of its cultivation and greatly diminishing and impairing its value"; also, by reason of the insufficient openings, "that the water is caused and will be caused to rush through with great force and violence the openings in said embankment which has been left to pass therefrom upon the lands and premises of plaintiff, tearing plaintiff's land into gullies and gulches and ravines in some places, and in other places to cover the same with sand and gravel washed from the rivers, logs, and floodwood, and causing the water that should have escaped at other places and at long distances therefrom to pass through said opening and over plaintiff's premises, to the injury and damage of the same, and to the great pecuniary loss and damage of plaintiff." We think these allegations, if true, show permanent injury to said land. *377
A further answer to appellant's contention in this regard is that, before this petition was read in evidence by the appellee, appellant had testified upon crossexamination that he had brought said suit and to the truth of all the material allegations contained in said petition; and, where testimony is erroneously admitted, this will not be cause for reversal if the same testimony has been previously given in the case without objection. Railway Co. v. Price,
As the jury found against the defendant on this issue, the erroneous admission of testimony upon such issue, if such had been the fact, would not constitute reversible error.
We might well have declined to consider this assignment of error and the proposition thereunder, for the reason that it is not made to appear, by the statement or otherwise, that any bill of exception was reserved to the admission of this testimony.
Appellant assigns error on the insufficiency of the amount of damages allowed him by the verdict of the jury. This matter was submitted to the jury under proper instructions, and we cannot say that their verdict is not such as should have been rendered from the evidence.
For the reasons hereinabove set out the judgment of the trial court in this case is affirmed.
Affirmed.