Central of Georgia Ry. Co. v. Kimber, 101 So. 827

Central of Georgia Ry. Co. v. Kimber

101 So. 827 | Ala. | 1924

The plaintiff in this action (appellee here) owned a home situated on several lots near Leeds, Ala., which were north of and adjoining the right of way of the Central of Georgia Railway Company, and brought suit against said railway for damages to her premises resulting from blasting on said right of way by the railroad. From a judgment for the plaintiff, the defendant has prosecuted this appeal.

The complaint as amended consisted of counts A, B, and C, but the court, in its oral charge to the jury, eliminated count C, and it will be here laid out of view. The only argument in support of the demurrer to counts A and B seems to rest upon the theory that, because the home embraced several lots, the damage to each was a separate cause of action, and could not be joined in a single count. This insistence, to our mind, is so clearly without merit as to call for no discussion. The court committed no error in overruling demurrer to these counts.

It was next insisted that the affirmative charge was due the defendant as to these counts, upon the theory that they charged a direct trespass by the corporation itself within the rule of City Delivery Co. v. Henry, 139 Ala. 166, 34 So. 389, and that there was no testimony showing a corporate participation therein. These counts are in case, seeking recovery for consequential damages, as was held in the City Delivery Co. Case, supra, in discussing counts 1 and 3 therein, where counts 2 and 4 were differentiated.

As to count B it is further insisted that the affirmative charge should have been given upon the theory that there can be no recovery for fright alone, and that this was the only element of damage claimed. This count, however, does not claim damages for fright alone, but for the effect which plaintiff's frightened condition had upon her nervous system. Under such a count, the fright charge was but a link in the chain of causation leading to the physical injury to her nervous system, and for this latter character of injury recovery may be had. Ala. F. I. Co. v. Baladoni, 15 Ala. App. 316, 73 So. 205, and authorities therein cited.

Exception was reserved to that portion of the oral charge of the court in which it was stated there were two ways of ascertaining the amount of plaintiff's damages, being the difference between the value of the property before and after the trespass, and what amount it would take to repair the property after the damage was done. There was no proof of any change in the market value on account of a change in general business conditions, but the court in the latter part of the foregoing sentence was merely instructing the jury as to one method of ascertaining the difference as to the market value applicable to the proof in this case (Fuller v. Fair, 202 Ala. 430,80 So. 814), and in the absence of any proof as to change or fluctuation in the market value there was no occasion for the court to instruct the jury thereon. There is nothing in this excerpt of the oral charge therefore of which defendant can complain. *104

We have here considered the several questions treated in brief of counsel for appellant, and, finding no reversible error, the judgment appealed from will be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.