99 So. 780 | Ala. Ct. App. | 1924
It is now the established law of this state, based on "reason, demanded by justice and supported by a preponderance of authority," that a municipal corporation acts ministerially, and is responsible for actual damages caused by the careless and negligent manner in which it discharges its duty in erecting and maintaining sewers and drains for the control of water falling or flowing on its streets. City Council of Montgomery v. Gilmer et al.,
The court did not err in admitting plaintiff's deed to the lot, in evidence. While the description in the deed begins, "A lot fronting 50 feet," etc., the language immediately following in the same paragraph corrects this, and correctly describes the lot described in the complaint.
There was no prejudicial error in the court's ruling permitting the witness Kircus to testify that the costs of repairing the house as a result of the damage was $35. This is not the measure of damage to which the plaintiff is entitled, but would tend to shed some light as a basis upon which the true damage might be ascertained. Even if this was technical error, there could be no prejudice to defendant as to its substantial rights.
A map made by a competent engineer showing the location, contour, and topography of the premises involved in the suit is, when testified to by him as being correct, admissible in evidence in aid of a proper understanding of the testimony. Sudduth v. Central R. R. Co.,
In his closing argument to the jury one of plaintiff's counsel made use of the following appeal to the jury:
"Gentlemen of the jury, you are the ones to make the great city of Birmingham stop imposing on the people as shown in this case; you only can punish the city, and you are to take it home to yourselves and put yourselves in the position of this plaintiff, and do by her as you would be done by, and if you don't I tell you that within the next 24 hours you likely will be the next victim of the imposition of the city, and then don't come around and cry about it, because if you find for the defendant in this case you thereby stamp you approval upon these impositions by the city of Birmingham."
This excerpt was objected to by defendant, and exception reserved. The action of the court in overruling this objection was also made one of the grounds for a new trial. Punitive damages were not recoverable in this suit. City Council of montgomery v. Gilmer,
When the damage caused by the erection of a dam or sewer diverting or concentrating the water from its natural flow is recurring, the right of action for each recurring injury is in the owner of the land at the time the injury results. 27 R. C. L. p. 1117, § 47, note 14. Where the injury is permanent, by a casual or recurrent overflow of water on land, the measure of damages is the difference between the market value of the land with and without the injury at the time thereof. I. A. Corp. v. Abercrombie,
Parties are only entitled to a new trial on the ground of newly discovered evidence where they have shown diligence in an effort to prepare their cases with respect to the evidence offered. Granting that the evidence tendered as newly discovered evidence is relevant and admissible, the defendant had the records, and defendant's engineer might have made a survey of the premises as well before as after the trial.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.