226 S.W. 472 | Tex. App. | 1920
Notwithstanding undisputed testimony showing that the construction of the embankment and side track decreased the value of appellee's property "in the sum of about $700," appellant insists it appeared that appellee had not suffered damages as founded by the jury and determined by the Judgment. The insistence is based on other testimony showing that the lot was worth as much at the time of the trial as it was before the embankment and side track were constructed. To sustain it this court would have to ignore still other testimony showing that the value of the lot, like the value of other property in the locality, had increased during the period of more than two years intervening between the time when the embankment and side track were constructed and the time when the case was tried. The question as to whether appellee has been damaged as he claimed he had been depended on whether his property immediately after the construction of the embankment and side track, and because of same, was worth less than it was immediately before same were constructed. If, and for that reason, it was worth less, the fact that it afterward became of as great or greater value than it possessed before the embankment and side track were built would not affect the rights of the parties. As we see it, there is no merit in the contention. Therefore the first, second, third, and sixth assignments are overruled.
It apeared from the testimony that it was necessary to construct the side track where and as it was constructed to enable appellant to discharge his duty as an interstate carrier, and appellant insists it did not appear from either the pleadings or the proof that he was quilty of negligence either in the construction or use made of the embankment and side track. Therefore he further insists he was not liable as determined by the judgment. A similar contention made in T. P. Ry. Co. v. Taylor, 200 S.W. 1117, was overruled by this court on the authority of cases there cited. And see Ry. Co. v. Green, 190 S.W. 555; Ry. Co. v. Davis,
The judgment is affirmed.