166 Pa. 613 | Pa. | 1895
The only error assigned is the refusal of the court to affirm the defendant’s point for charge: “If the jury believe that the change of grade was made at the request of William P. Lewis and made as he designated, and was a special advantage to him, the plaintiffs are not entitled to recover.” In declining to affirm this point, the learned trial judge rightly said, in substance, that although the jury might find that plaintiff’s intestate requested the change to be made, and it was done accordingly and was advantageous to him, yet if the damages he sustained bjr thus changing the grade were greater than the advantages that accrued to him therefrom, he had a right to claim and recover damages measured by the difference between the advantages and disadvantages. That right he had under article XVI, sec. 8 of the constitution; unless he waived it, or did something to estop himself from asserting this claim. There is no evidence of either in the case. The principle is so obviously correct that it needs neither argument nor citation of authority to support it. It is recognized in Jones v. Borough of Bangor, 144 Pa. 638, and other cases.
Judgment affirmed.
