Brinkley & Lassiter v. Norfolk Southern R. Co.
| Decision Date | 17 March 1915 |
| Docket Number | 170. |
| Parties | BRINKLEY & LASSITER v. NORFOLK SOUTHERN R. CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Daniels, Judge.
Action by Brinkley & Lassiter against the Norfolk Southern Railroad Company and the town of Greenville. Judgment for defendants and plaintiff appeals. Affirmed.
A railroad replacing a drain under a street is, as regards injury to abutting property from surface water, under the duty only of exercising ordinary care.
This is an action in which the plaintiffs are asking for damages from the defendant railroad company and the town of Greenville for building a culvert and closing a ditch which ran through their land and across Dickinson avenue immediately under where the railroad crosses. In putting in the improvements the defendants placed two 24-inch drain tile parallel in said ditch, and built a culvert between four and six feet high at the opening of said drain tile in the lower edge of plaintiffs' property. Plaintiffs claim damage from the ponding of water by reason of the insufficient opening to carry off the water coming down said ditch which ran along parallel and near to the walls of their brick warehouse alleging that the water caused the walls of said building to give way and crack, and soaked the basement used for ordering and grading tobacco. This was denied by the defendants.
The evidence tended to show that many years before this place at the street was a low flat, and the town constructed a wooden drain at the street crossing of the drain 18 inches wide that subsequently one line 24-inch pipe was put in under the street, and it was raised some; that thereafter, the town authorities paved Dickinson avenue and put in two lines of 24-inch pipe and carried this drain across the street, and the railroad company had continued the same drains across its property below Dickinson avenue for about 30 feet. The plaintiffs built their buildings on the ditch and did not cement the basement, and complain because the water rose in the basement.
The jury returned the following verdict:
(1) Has the plaintiffs' property been damaged as alleged in the complaint, by the negligence of the defendant, Norfolk Southern Railroad Company? Answer: No.
Has the plaintiffs' property been damaged as alleged in the complaint, by the negligence of the defendant the town of Greenville? Answer: No.
Judgment was entered upon the verdict in favor of the defendants and plaintiffs appealed, assigning the following errors:
(1) In that the court committed an error in permitting the witness to answer the question as to whether there would have been any ponding in 1910, if the drainage had been properly put there.
(2) In that the court permitted the witness to answer the question as to whether any basement could be depended upon to be free from danger of seepage that does not have concrete floor and wall in a damp, soggy place.
(3) In that the court permitted the defendant's counsel to ask T. J. Smith, who was not qualified as an expert, or by practical experience to answer, the following:
(4) In that the court permitted defendant's witness C. H. Harvey to answer the following question, although not expert, or qualified as an expert:
(5) In that the court permitted the introduction of the minutes of the board of aldermen, without showing the purpose for which introduced, as having no bearing on the question at issue before jury.
(6) In permitting witness E. H. Evans to answer the question set forth in the record, page _____, as to the sufficiency of the opening for drainage, without expert knowledge, or experience to answer question as to proper drainage, basing his opinion on what he had seen.
(7) Court's permitting W. H. Dail, Jr., to answer a question as to the water in a previous basement without showing that conditions were the same, or that he was familiar with conditions now.
(8) The plaintiff appellants rely on the exceptions 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28.
S. J. Everett, Harry Skinner, and L. G. Cooper, all of Greenville, for appellant.
L. I. Moore, of Greenville, for appellee Norfolk Southern R. R.
Jarvis & Wooten and F. G. James & Son, all of Greenville, for appellee Town of Greenville.
The first assignment of error cannot be sustained, because the record fails to disclose what would have been the answer of the witness or what the plaintiff expected to prove. Lumber Co. v. Childerhose, 167 N.C. 40, 83 S.E. 22. The evidence both for the plaintiff and the defendants was to the effect that the ponding of water referred to in 1910 was the result of an extraordinary rainfall, and we cannot infer from the evidence what the opinion of the witness as to its effect if the drainage had been properly put in, and cannot see that the answer would have been favorable to the plaintiff.
The second and fourth...
To continue reading
Request your trial