Carstarphen v. Cent. Of Ga. Ry. Co

• Decision Date: 06 September 1910
• Docket Number: (No. 1,898.)
• Citation: 68 S.E. 848,8 Ga.App. 162
• Parties: CARSTARPHEN v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Court of Appeals

68 S.E. 848

8 Ga.App. 162

CARSTARPHEN

v.CENTRAL OF GEORGIA RY. CO.

(No. 1, 898.)

Court of Appeals of Georgia.

Sept. 6, 1910.

(Syllabus by the Court.)

1. Negligence (§ 134^*)—Action—EvidenceWeight and Sufficiency.

The evidence in behalf of the defendant authorized the finding in its favor if the jury believed the circumstances detailed by the witnesses and from which the plaintiff's knowledge of the existence of the sewer must necessarily have been inferred or presumed.

[Ed. Note.—For other cases, see Negligence, Dec. Dig. § 134.*]

2. Appeal and Ebrror (§§ 1032, 1068*) — Harmless Error — Instructions — Burden of Showing Prejudice from Error.

"When the jury find for the defendant, the plaintiff cannot have been hurt by any error in the court's instructions as to the measure of damages." Conant v. Jones, 120 Ga. 568(12), 48 S. E. 234. While this general statement may be subject to exceptions, it is not apparent in the present case that there would or should have been a finding in favor of the plaintiff even if the trial judge had charged the jury that the plaintiff was entitled to recover the amount of rental which he lost by reason of the defendant's failure to abate the nuisance complained of; and he who assigns error must show not only error, but material injury in consequence thereof.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051, 4225-1230; Dec. Dig. §§ 1032, 1068.*]

Error from City Court of Macon; Robt. Hodges, Judge.

Action by T. J. Carstarphen against the Central of Georgia Railway Company. From ejectment in favor of defendant, plaintiff brings error. Affirmed.

Miller & Jones and J. C. Morcock, for plaintiff in error.

J. E. Hall and Wimberly & Jordan, for defendant in error.

RUSSELL, J. The plaintiff brought suit in the city court of Macon against the Central of Georgia Railway Company for $25,000 damages. He alleged that in consequence of the discharge of steam and water discharged under his building by the defendant through a drainpipe from the defendant's premises the building itself had been damaged $3,000, and, in addition thereto, he had sustained a monthly loss of $125 in the way of rent. According to the allegations in the petition, the presence of the pipe or sewer was unknown to him at the time he erected his warehouse, and the steam and water were surreptitiously discharged. The proof in be half of the plaintiff tended to show that he (and his associates and predecessors in title) had no knowledge of the existence of this pipe or sewer at the time the warehouse was erected, and that from the appearance of the lot on which the building was erected the presence of the sewer could not have been detected by ordinary care and prudence. On the other hand, testimony in behalf of the defendant was introduced to the effect that the sewer was built in 1873, several years prior to the erection of the plaintiff's building, and that the brick bulkhead stood in plain view of every one, and was used as a seat and resting place by some of the witnesses. There was testimony in behalf of the plaintiff that no water or steam was discharged through it until after the plaintiff's building was erected. But, on the other hand, at least one witness for the defendant, Ben Goodyear, testified to seeing water flowing through it prior to the erection of the building. The testimony abounds with material conflicts, especially as to the plaintiff's knowledge of the sewer prior to the erection of the building, or at least as to knowledge of such facts that as an ordinarily prudent man he ought to have known of its existence and use. The suit was filed February 6, 1904. The evidence is undisputed that the first notice to abate the nuisance was given in December, 1903. The evidence is likewise undisputed that the sewer was not constructed by the present defendant, but by its predecessor in title—the Central Railroad and Banking Company—and the condition of the sewer, so far as appears from the record, was unchanged from what it was in 1S96, when the Central of Georgia Railway Company purchased the property. It is therefore apparent that, allowing the defendant a reasonable...