59 So. 879 | Miss. | 1912
delivered the opinion of the court.
The cause of action in the present case is not predicated upon section 17 of the Constitution; it being charged by the declaration that the injury to plaintiff’s property was caused by the negligent construction of the sidewalk and street grade. The only issue presented to the trial court was whether or not .the city was negligent. In fact, the pleadings charged, and all the evidence was an attempt to show, a negligent and careless change in the plans of the street grade. This being the issue made by the pleadings, the question of negligence
It is complained that the trial court peremptorily instructed the jury that no damages should he considered by reason of the obstruction of the flow of the rainwater falling upon the lot. We think the evidence clearly shows that there was no negligent or careless construction, so far as the same may have affected the drainage of the surface water. This damage, if any, resulted from a perfectly proper exercise of the city’s power to alter its street grade. The city had the undeniable right to change its street grade, and to alter the original plans and specifications, and in so doing there was no negligence per se, and no negligence in fact is shown by the evidence.
It is unnecessary to say what would be the rule under a different state of the pleadings, as we deal with each case as made by the pleader.
We see no reason for changing our former action, and the suggestion or error is therefore overruled..
Suggestion of error overruled.
