176 Ind. 597 | Ind. | 1911
Appellee brought this action to recover damages for alleged injury to his property, caused by appellant’& alleged converting of a small sanitary sewer into a storm and surface-water sewer, as a result of which the sewer became overloaded, and the water and sewage backed into appellee’s cellar. In the court below appellee recovered damages in the sum of $275. The only error assigned is the overruling of the motion for a new trial. The complaint is in a single paragraph.
(action for this cause. Therefore, it was error to give instructions under which appellee could recover either for wilfull injury or for injury resulting from negligence. Batman v. Snoddy (1892), 132 Ind. 480; Feder v. Field (1889), 117 Ind. 386; Armacost v. Lindley (1888), 116 Ind. 295; Gregory v. Cleveland, etc., R. Co., supra; First Nat. Bank v. Root (1886), 107 Ind. 224; Cleveland, etc., R. Co. v. Godman (1885), 104 Ind. 490; Brown v. Will (1885), 103 Ind. 71; Bremmerman v. Jennings (1885), 101 Ind. 253; Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160; Mescall v. Tully (1883), 91 Ind. 96; Thomas v. Dale (1882), 86 Ind. 435. Appellant also contends that appellee has no cause of action in this case on the ground of negligence. It is unnecessary to decide this question, since the judgment must be reversed upon the error already pointed out.
The judgment is reversed.