38 S.C. 284 | S.C. | 1893
The opinion of the court was delivered by
This action was commenced in February, 1890, for the purpose of recovering damages alleged to have been done to plaintiff’s property by the defendant company. In the complaint, three causes of action are stated: 1st. Because the defendant so negligently constructed a culvert, under an embankment where the railroad runs through plaintiff’s land, as that the water on the north side of the road was backed up on plaintiff’s land, so as to render the same almost worthless; and, further, that, owing to
It seems from the evidence that the embankment and culvert were originally constructed in the year 1881, and that in May, 1886, during a freshet in the stream over which the road crossed on said embankment, the culvert was washed out, and the plaintiff’s land on the south side of the railroad was washed and covered with sand — to what extent, was one of the questions of fact in the case.
From the judgment rendered in the cause the plaintiff appeals upon the following grounds, alleging error as follows: “1st. In requiring the plaintiff to testify what he received for other lands near the lauds damaged, sold by him long after the freshet in 1886, and in holding such evidence competent. 2d. In allowing the witness, J. H. Montgomery, who had never examined the land until the trial, and did not go over it then, to testify that he only saw one-fourth of an acre that had been damaged by the freshet. 3d. In holding there was no evidence to sustain the plaintiff’s third cause of action, and in granting a non-suit as to the same. 4th. In holding and charging the jury that, in estimating the damage to plaintiff, they could not take into any consideration the loss of any crops from the land, but that the only measure of damages would be the difference between the value of the land immediately before and after the freshet. 5th. In instructing the jury that, in estimating the damages, they could only go back to 1886 — the time the embankment broke — thus cutting them off from any opportunity of giving damages for injury done to the land above the embankment before it broke. 6th. In refusing the motion for a new trial.”
Passing by, for the present, the third and sixth grounds of
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.