73 So. 885 | Miss. | 1916
delivered the opinion of the court.
The record in this case is so badly arranged, and so difficult to understand, that we were misled when we affirmed the judgment of the trial court. We were then under the impression that the record showed that appellant was seeking to recover for the value of crops alleged to have been planted on land for which land he had recovered in a former suit the full value. This conclusion we find was erroneous, after a careful disentangling of this small, yet difficult, record of the first and second suits.
It appears that in the first suit the jury rendered a verdict for damage to crops alone. The declaration in the first suit declared for damage to crops, and also for damage to the land. As before stated, we were of the opinion that if the appellant had recovered for the full value of his land, he could not recover for the crops afterwards grown on that land. In other words, when the defendant paid for the land, the plaintiff would not, in good, conscience, he permitted to afterwards claim that the land had not been totally destroyed. Beading the record, we think now that plaintiff was entitled to have the case go to the jury upon the evidence showing that defendant’s negligent construction an,d negligent maintenance of its roadbed had caused substantial damage to his property.
Appellees insist that the suggestion of error should he overruled, and plants himself upon the Sibley Case, reported in 71 So. 167. We think learned counsel for appellee has misconstrued the opinion rendered in the Sibley Case. The court merely held in that case that the negligent construction and maintenance of the railroad was conclusively séttled in a former suit, and when it was admitted that there had been no change in the condition, there was nothing left to submit to the jury, except the amount of the damage which had resulted from the continued maintenance of a judically determined negligently
As we now view the record, the evidence tends to show that at the time this case was tried the railroad company was maintaining an improperly constructed roadbed, and in consequence plaintiff was damaged. The court, for some reason, took from the jury the decision on the facts, and this was error.
Reversed and remanded.
