68 Tex. 685 | Tex. | 1887
Appellee brought this suit in the court below to recover of appellants damages to his homestead in the city of Texarkana, alleged to have been caused by "the construction of appellant’s railway along the street in front of the property. In an amended petition filed at October term,
Nor do we think there was error in refusing defendant’s application to continue the cause. The application' was oral and seems to be based solely upon the ground that the change in the description of the property, operated as a surprise to the defendant, and necessarily required a continuance of the case at its request. But such is not the law. Admitting for the sake of the argument, that the amended petition set up a new cause of action, the question of continuance was largely in the discretion of the court. When the amendment is such as to take the other party by surprise, the rules prescribe that “it shall be cause for imposing the cost of the term upon and charging the continuance of the cause (both or either) to the party causing the surprise, if the other party demanded it and shall make a satisfactory showing, or if it is otherwise apparent that that he is not ready for trial, on account of said * * amendment being allowed to be filed by the court.” (Rule 16,47 Texas, 619.) The defendant filed no affidavit showing that he was not prepared to go to trial, and we can not say that it was apparent to the court without such showing, that he was not ready. Both the first and second amended petition, in laying the place of injury, says: “The said defendant * * * constructed its said railway in and upon said Ward street immediately in front of and within fifty feet of plaintiff’s said residence, on said por
The case of Cowan v. Williams, 49 Texas, 380, cited by counsel, is very different from the case at bar. There the amendment was made and the cause tried in the absence of the defendant and his counsel, and his motion for a new trial set up grounds showing his suprise. , The court say: “If he or his counsel had been present, a continuance would have been granted on an affidavit of surprise by the amendment.” Here there was no affidavit of surprise.
But it is insisted that the court erred in overruling the motion for a new trial, “ because the propf showed that no specific injury was done to plaintiff’s premises by the building of said railroad in said street, and that the only injury sustained by plaintiff was such as was common to all other property owners in said street.” The fact that the injury was common to all other property holders on the street would not bar the plaintiff’s right of recovery. The plaintiff sues for a special damage to his own property by reason of defendant’s having impaired the use of the street upon which it fronts. It does not affect his right to recovery, that the owners of property fronting on the same street have been injured in the same manner. This is a loss peculiar to plaintiff’s property, and not one he suffers in common with the community generally where the property is situated. (Gulf, Colorado & Santa Fe Railway Company v. Fuller, 63 Texas, 467.)
As to the damages, the evidence was conflicting. But there was testimony that the railroad made a cut in the street in front of defendant’s property from four to six feet deep; that there was room between this and the sidewalk for the passage of one
It is also assigned that the damages allowed were excessive. Plaintiff’s witnesses placed the damages at from five hundred to one thousand two hundred dollars. Defendant’s witnesses testified that the property was not depreciated by construction and operation of the railroad, and that there was no damage. There being a conflict of testimony, and there being ample evidence to sustain the finding of the court as to the amounts of damages, the judgment will not be disturbed on this ground.
We find no error in the judgment, and it is affirmed.
Affirmed.