140 Ky. 502 | Ky. Ct. App. | 1910
Reversing.
Appellant, Board of Park Commissioners of the city of Louisville, has the care, maintenance and custody of all the boulevards and parkways belonging to that city. Appellee, Clara Donahue, owns a house and lot situated on the east side of Third street which she purchased prior to the time of the injury hereinafter complained of. Charging that appellant, in the year 1904; wantonly and negligently constructed across Third street, at a point adjacent to her property, a drain pipe for the purpose of draining the water from the Third street boulevard and surrounding territory, and that said drain pipe entered into a lower vacant lot adjoining her property and caused a great quantity of water to pour in and collect upon said lot and to collect into a pond, and that the water from this pond flooded the cellar of her house and filled the cellar with water, thus injuring the foundation of her house and otherwise damaging it, appellee brought this action to recover damages for the sum of $1,200 because of the aforesaid injury. She also asked damages in the sum of $300 because her boarders left her on account of the water in the cellar and the damp and unhealthy condition of her house, and she thereby suffered a loss in her business as a boarding housekeeper. The issues were completed by appropriate pleadings and a trial was had, which resulted in a verdict and judgment for appellee in the sum of $500. From that judgment this appeal is prosecuted.
The evidence for appellee tends to show that there was no pond on the low adjoining lot at the time she purchased and moved into the property in question, and that the injury complained of was caused solely by the construction of the drain pipe in question, which carried the water from the boulevard and adjoining territory on to the lot. On the other hand, the evidence for the appellant tends to show that the pond existed upon the adjoining lot for a great many years, and that the place where appellee’s house was erected was in a natural drain, and that the water would have accumulated on the adjoining lot notwithstanding the construction of the drain pipe.
The principal error assigned upon this appeal is the giving of the following instruction on the measure of damages:
This court has frequently condemned instructions similar to the above. Thus in the case -of C., N..O- & T. P. Ry. Co. v. Gillespie, 130 Ky. 213, where the plaintiff sued for damages for the pollution of a spring, this court hold that an instruction -which authorized the jury to award the plaintiff such sum in damages as they believed would fairly compensate her “for the damage and injury to ' her spring” was erroneous, because it did not lav down any measure of damages for the guidance of the jury. (See, also, the following cases: Lexington Railway Co. v. Herring, 29 Ky. Law Rep. 794; Louisville Gas Co. v. Fuller, Id., 130; Louisville & Nashville R. R. Co. v. Cleaver, 28 Ky. Law Rep. 497; Illinois Central R. R. Co. v. Haynes, 122 S.W. 210.)
Counsel for appellee practically admit that the instruction complained of is incorrect, but insist that the facts of this case bring it within the rule laid down in the case of Louisville & Nashville R. R. Co. v. Ponder, 104 S. W. 279, where a similar instruction was under consideration, but we declined to reverse because the court repeatedly called the attention of the jury to the fact that the question before 'them was the difference between' the market value of the property before and after the injury, 'and for the additional reason that counsel for the railroad company in that case did not ask or request any additional instruction on the measure of damages. In that case, however, there was no question as to the permanency of the structure that caused the injury. In the case before us, we are unable to determine whether the drain pipe is a permanent structure; that is, one that can not be easily and readily removed at little expense, or is onty temporary in its character. During the hearing of the testimony, counsel for appellant objected to a question concerning the fair rental value of the property. Thereupon the court said; “I think the' theory upon which this suit was brought is for a permanent injury
Judgment reversed and cause remanded for a new trial consistent with this opinion.