H., E. & W. T. R'y Co. v. Hardy

West, Associate Justice.— It seems to be true that there was neither pleading nor evidence on which to base that portion of. the charge which, in substance, directed the jury, in determining the amount of damage, to consider the difference in rental value of the property in question before and after the wrongful act of the plaintiff in error. The record, however, discloses affirmatively that the jury were not in the least influenced by the views of the court as to the matter of difference in the rental value of the land. The verdict is to [232] the effect that the damages were caused by the fact that the culvert constructed by the plaintiff in error did not have sufficient capacity to carry off the water, and as a' consequence the property of the defendants in error was overflowed and damaged. There was considerable evidence to the effect that the culvert was: not large enough for the purpose for which it was designed. There, was also some testimony tending to show that the property of the defendants in error was considerably injured from this cause. . It is also true that the petition did not set out very clearly, or specially, all the elements and matters of damage on which the defendants in error relied to authorize a recovery. There were, how-. ever, general allegations, which -show clearly that the defendants in error did in fact claim damages resulting from the acts of plaintiff-in error, other than the special damage set out in the petition. The plaintiff in error filed only a general demurrer to the petition of the-defendants in error, and afterwards abandoned that. Ho objection whatever was taken on the trial to any evidence that was-offered in support of the claim of the defendants in error for damages. ; Under these circumstances, as the- verdict shows the special grounds upon which the jury rest their findings, .and as the pleadings were sufficient to authorize such findings, and as there was some, evidence introduced to that effect, the verdict should not, under the circumstances, be disturbed. Though the charge of the court may in some respects be incorrect, or present some issue not raised by the pleadings, yet if it appears affirmatively from the record that the finding of the jury was not influenced by such erroneous charge, the case will not ordinarily be reversed because of such immaterial error of the court. City of Galveston v. Morton, 58 Tex., 416; Carter v. Eames, 44 Tex., 544; Jones v. Thurmond, 5 Tex., 318; Salinas v. Wright, 11 Tex., 572; Hollingsworth v. Holshousen, 17 Tex., 41; Merriwether v. Dixon, 28 Tex., 19; King v. Bremond, 25 Tex., 637. The judgment is affirmed. Affirmed. [Opinion delivered February 29, 1884.]