83 S.E. 738 | N.C. | 1914
This case was before us a year ago, and was then decided in favor of the defendant to the extent of granting a new trial. The action was brought to recover damages for negligently constructing a (620) fill in front of plaintiff's home on Ninth Street in the said city, for the purpose of grading and improving that thoroughfare. The allegation is that the fill left the plaintiff's lot far below the level of the street. It was below before the street was graded, but the depth had been increased, so that the lot was greatly damaged and its value impaired by the flow of the surface water from the street, with dirt and silt. The other facts appear in the case, on former appeal, as reported *680
in
1. Did defendant, in raising, grading, and permanently improving Ninth Avenue in front of the house and lot of the plaintiffs, raise, grade, and improve said street at said place in a negligent and improper manner? Answer: "Yes."
2. If so, was plaintiffs' property injured thereby? Answer: "Yes."
3. What damages are plaintiffs entitled to recover? Answer: "$478."
4. Did defendant cut down and destroy the tree in question on plaintiffs' property? Answer: "Yes."
5. If so, what damage did plaintiffs sustain by reason of such cutting of the tree? Answer: "$22.40."
Judgment was entered thereon and defendant appealed.
It was decided in the former appeal that, while plaintiffs could not recover for any detriment to their property which was the result merely of the proper grading of the street, which had been done in the due exercise of the discretionary power of the city to make needed improvements, it being damnum absque injuria, yet they could recover for any damage done thereto which was caused by a negligent grading of the street, following the principle as adopted in numerous decisions of this Court. Meares v. Wilmington,
Where there is no negligence, no liability arises. This, we said inDorsey v. Henderson, supra, has been the law since the days of ChiefJustice Kenyon and Justice Buller. Governor, etc., Manufacturers, v.Meredith, 4 Durnf. and East, 794, 796; Sutton v. Clark, 6 Taunton, 28;Boulton v. Crowther, 2 Barn. and Creswell, 703. This doctrine is almost universally accepted by the State courts of this country. Cooley Const. Lim., p. 542, and notes. The same principle was also recognized inTransportation Co. v. Chicago,
The jury have found the facts against the defendant, and there is ample evidence to support the verdict. The plaintiff could show the negligence by other than expert testimony. The jury were not bound to believe, nor to adopt, the views of the experts, nor were they concluded thereby, as to whether the work had been negligently (622) done. "For any inconvenience or damage sustained by the plaintiffs' lot from placing the fill in the street opposite thereto under the advice and supervision of the civil engineer, whose plans were approved by the city authorities acting in good faith, the plaintiffs cannot recover unless the work was done negligently. It is damnum absque injuria." *682
This was decided on the former appeal, but the question of negligence was expressly left open for the decision of the jury. It was also there said: "If there was no such agreement, the plaintiffs were entitled to have the jury consider the damage, if any, caused by defendant's negligence in not erecting a retaining wall to prevent the dirt from rolling down upon the lot of the plaintiffs." Judging from the photograph exhibited to us at the hearing, we think the jury might well have found that there had been negligence. The photograph itself was competent, as explanatory of the other testimony. Davis v. R. R.,
There are other exceptions which are not tenable, and if there was any error in these rulings, it is not reversible, not being prejudicial. The main question was as to the negligence. There being evidence of it, the jury were the judges of the facts.
No error.
Cited: Bennett v. R.R.,
(623)