Ga. v. Jernigan

• Decision Date: 14 June 1907
• Citation: 57 S.E. 791,128 Ga. 501
• Court: Georgia Supreme Court
• Parties: GEORGIA, F. & A. RY. CO. v. JERNIGAN.

57 S.E. 791

128 Ga. 501

GEORGIA, F. & A. RY. CO.

v.JERNIGAN.

Supreme Court of Georgia.

June 14, 1907.

1. Writ of Error—Review—Harmless Error—Instructions—Assumption of Fact.

Where a fact is conceded to be true, and the parties are not at issue with reference thereto, it is not reversible error for the judge, while instructing the jury, to intimate or express an opinion that such fact has been proved.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4221.]

2. Railroads—Construction—Obstruction of Drain—Liability.

If a railroad company in the construction of its roadbed intentionally obstructs a natural drain, thereby causing water to accumulate and form a stagnant pond, amounting to a nuisance, near the residence of another, and producing illness among the members of the family of such person, the railroad company will be liable to him for damages arising therefrom. The plaintiff, by his pleadings and evidence, having presented a case proper to be submitted to the jury under the foregoing theory, it is no cause for the grant of a new trial that the judge charged the jury: "It [the railroad] is not bound to guard against every possible contingency which may arise, and which may result to the injury of the property or the health of others, but it is bound to so construct and keep and maintain its culvert that the accumulation of water from rains or other causes, which in the usual course of events is likely to occur, may not cause ponds or other formations of water such as will endanger the health or life of the adjoining landowners."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Nuisance, § 147.]

3. Damages—Excessive.

The verdict is not excessive, and is supported by the evidence, and no sufficient cause is shown for the reversal of the judgment.

(Syllabus by the Court.)

Error from Superior Court, Randolph County; Moses Wright, Judge.

Action by J. F. Jernigan against the Georgia, Florida & Alabama Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Donalson & Donalson and Powell & Potter, for plaintiff in error.

W. C. Worrill and M. C. Edwards, for defendant in error.

ATKINSON, J. 1. This is an action for damages resulting from an alleged nuisance, which it is averred caused members of the plaintiff's family to be ill. The nuisance was a small stagnant pond of water near the plaintiff's residence, which was produced bythe construction of the defendant's roadbed across a low place, being a natural drain for adjacent territory, without placing under the roadbed a proper culvert for the purpose of allowing the water to escape. The evidence is undisputed that the water did accumulate, and that a culvert was necessary in order to avoid such accumulation. The culvert was constructed, but not on a level with the lowest place of the drain. It was constructed higher up. The defendant contended that such was the best method of making a permanent drain; this upon the idea that the entire place was naturally low and in time of rain the water could not pass through, and consequently trash would accumulate and obstruct the culvert, whereas by raising the level of the culvert, while the water would pond for a while, soil from the adjacent territory would soon...