59 So. 382 | Ala. Ct. App. | 1912
By a process of elimination in pleading and withdrawals, the five counts of the complaint
The case made by the fifth count of the complaint, as amended, is: That the defendant Avas a public sendee corporation; that plaintiff Avas the OAvner of a certain lot in the city of Birmingham particularly and definitely described; that the defendant, in the enlargement of its works, etc., excavated or removed a large quantity of earth or dirt on one of the streets of the city at a point Avhere an alley, upon Avhich plaintiff’s property abuts, enters or adjoins such street; that the alley, Avhere it enters or joins the street, Avas closed or greatly obstructed and rendered inaccessible because of such excavation. The allegations, in describing the location of plaintiff’s property in relation to the streets, alley, and place of excavation, show that the lot upon Avhich the plaintiff’s house is situated is in the block immediately adjoining the street in which the excavation Avas made, only one 50-foot lot on the corner of the block intervening between plaintiff’s lot and this street; and that the alley, access to AAdiich Avas shut off, Avas in the immediate rear of plaintiff’s property, and led directly into the street excavated, and cut off plaintiff’s communication through the alley with this street.
An interference Avith the right of access and passage from an abutting alley into an adjoining street is clearly averred in the complaint in such manner as to sIioav a claim for damages, based on an injury different in kind from that suffered by the public in general. It was not necessary to aver that plaintiff had no other
We have examined the rulings of the court on the evidence, and find no error committed by the court in passing on the objections of counsel to the admission or exclusion of evidence. The witness Uhl testified that he had lived in the near neighborhood of the location of the property in question for about 20 years, and that the map shown him Avas “a correct map of the locality Avhere Mrs. Long (the plaintiff) lives.” The map was properly admitted.
Clearly the measure of damages Avas the deprecia tion of the market value of the property, caused by the excavation in question. — H. A. & B. R. R. Co. v. Matthews, 99 Ala. 24, 10 South. 267, 14 L. R. A. 462; Meighan v. Birmingham T. Co., 165 Ala. 591, 603, 51 South. 775; 3 Sedgwick on Damages, 414. And the questions asked the Avitness Uhl, Smith, and Hutto on the market value of the lot were competent and proper as tending to shoAV the market value of the property before and after the acts complained of.
The question asked the witness Lindsay called for no more than the short-hand rendering of a collective fact. — Shafer v. Hausman, 139 Ala. 237, 35 South. 691. The Avitness stated in detail the facts, and even if the
The deed of plaintiff to the property was admissible for the purpose of showing the extent and character of her possession of the property described. If defendant desired a limitation placed on the evidence, it should have requested proper instructions.
The question asked the witness Estelle as to his having inquired of the city authorities, or any other third person, in reference to the grade of the street, could have elicited no legal evidence, and the objection to the question ivas properly sustained. If the purpose of the question, as contended by appellant, went to the imposition of punitive damages, and was competent for that reason, the ruling was without injury, as the verdict rendered is clearly shown not to include punitive damages.
The principle requiring the injured party to minimize the damage has no application to this case, where the measure of damages is the market value of the property before and after the damage complained of; and the oral charge of the court, to the effect that the plaintiff was not required to minimize her damage by using an adjoining lot belonging to private parties in going to and from her property, was not error of which defendant can complaint. Nor was there error in refusing the written charges asserting the plaintiff’s duty to minimize her damages.
The assignments of error going to the instructions of the trial court authorizing the jury to award punitive damages .are not available to work a reversal of the case. If the court erred in submitting this question to the jury, it is immaterial; for it is obvious from the evi
Charge No. 2, given at the request of the plaintiff, is no more than a statement of the rule of law that the injury Avas single and indivisible, and that plaintiff’s entire cause of action Avas involved in this suit, and that successive suits for the recovery of continuing damage could not be maintained; that the existence and continuance of the condition complained of constituted but one Avrong; and that future and past damages could only be recovered in this action. If the defendant deemed the charge calculated to mislead, the duty devolved upon it to ask an explanatory charge, as Avould seem to have been the course pursued, from a reading of charge No. 7, given at the request of the defendant.
Charge No. 2, requested in Avriting by the defendant and refused by the court, is misleading, and not such a charge as the court will be put in error for refusing.— Bodine v. State, 129 Ala. 106, 112 29 South. 926; So. Ry. Co. v. Hobbs, 151 Ala. 335. 32 South. 844; A., B. & A. R. R. Co. v. Wheeler, 154 Ala. 530, 46 South. 262; Robinson v. Crotwell, 174 Ala. 57 South. 23; Johnston Bros. v. Bentley, 2 Ala. App. 281, 56 South. 742. One construction that could be placed on- this charge Avould be that of referring a question of laAV to the jury, and it could have been properly refused for that reason. — Land Co. v. Edmonson, 145 Ala. 557, 40 South. 505; Dungan v. State, 2 Ala. App. 235, 57 South. 117.
There was sufficient evidence connecting the defendant with the commission of the act complained of to
We have considered all the errors assigned and argued by counsel for appellant, and none of them presents error for which the case should be reversed.
Affirmed.