1. The motion for nonsuit was properly overruled. There was nothing in the so-called waiver that permitted the city to make the fill in a careless or negligent manner, or in such a way as to unnecessarily destroy or injure plaintiff’s buildings. The city put this construction on it when it stipulated in the contract with defendant bridge company that “the sloping on adjacent property should be done in such a manner as not to injure or damage any buildings thereon.” This was the method contemplated by the city, and the method agreed to and accepted by the defendant bridge company. It was a wise and safe method. Said defendant departed from this part of the city’s plan, and from its contract, and constructed its fill without making any attempt to protect plaintiff’s buildings from injury, and in a manner indicating a total disregard of plaintiff’s rights. There is nothing in the bill of exceptions indicating that the defendant bridge company was executing its contract in accordance with the plans of the improvement. The testimony brought here indicates that it was not so doing, and, in the absence of the whole record, we must assume that there was no evidence to justify such instruction.
2. The exception to the remarks of the court is not well taken, and, so far as these defendants are concerned, correctly states the law.
3-5. In the condition of the record we are unable to say that the court erred in admitting the testimony of the witness Murray. The bill of exceptions must *312point ont error, and make it plain that under no combination of circumstances could the testimony have been admissible. Even had it been inadmissible, it is difficult to see how it could have injured the defendant. The written testimony here, the waiver, the plans and specifications, and the contract establish a plain duty on the part of the defendant bridge company to carry on the improvement in such a manner as not to injure plaintiff’s property, and the oral evidence introduced by plaintiff tends to show an entire disregard of this duty. Here the defendant stops. ¥e will not assume, in the absence of the remainder of the testimony, if any was given relating to the matters above alluded to, that it would have contradicted that given by plaintiff, which, in our opinion, left the jury no alternative but to assess the damages. In this view of the case it is difficult to see how Murray’s testimony would have worked any injury.
6. "We are of the opinion that the court did not err in instructing the jury concerning their right to give vindictive damages. The jury might well find from the evidence that the injury was caused by the reckless manner in which defendant prosecuted its work, and it did not require an expert to determine that with even slight care no damage would have resulted. “He whose dirt it is must keep it that it may not tresr pass”: Hodkinson v. Ennor, 4 Best & S. 241.
The judgment is affirmed. Affirmed.
Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.
