Galveston, Harrisburg & San Antonio Railway Co. v. Ware

Stayton, Associate Justice. There is nothing in the facts of this case on which to base a claim for exemplary damages, and as none other than actual damages were awarded by the jury, no injury resulted from overruling the demurrer to so much of the petition as attempted to state facts on which to found a claim for exemplary damages. The language used, however, in that part of the petition, was improper and shouldVhave been stricken out. The application, which was for a first continuance, was in strict compliance with the statute, showed legal diligence, and should have been granted, on account of the absence of the witness. It was claimed by the appellee, among other matters, that a house on his lot was greatly injured on September 15, 1883, by a flow of water upon that lot, caused by the improper construction of appellant’s railway, that he caused to be repaired and had in it on April 30, 1884, furniture and stores which, with the house, were on that day destroyed by a storm. This destruction of the house he attributed to its weakened condition, resulting from the-overflow which occurred more than seven months before. Evi [637] dence to prove the destruction of the house, furniture and goods, was objected to but admitted. If the house was injured through the negligence of the appellant then the appellee was entitled to recover damages which directly or necessarily resulted from such injury, but he was not entitled to recover for an injury resulting from another cause, which the appellant in no way participated in bringing about. If the house was rendered insecure by the overflow, and this resulted from the negligence of the appellant, it was negligence in the appellee to place furniture and stores in it, and the injury resulting from his own act can not entitle him to compensation. The right to recover for any injury to the house caused by the negligence of the appellant, and the measure of damages were fixed by7 facts existing long before the storm came which destroyed it, and the appellee would have been entitled to recover such sum as would have been necessary to put the house in as good condition as it was before the overflow, with reasonable compensation for any interruption in its use while in course of repair, or to the difference between the value of the house before and after it was injured, with compensation for any deprivation of its use necessarily suffered while it was being repaired. This was the extent of the right of the appellee to recover for any injury to the house which may have been caused by the negligence of the appellant. The injury from the storm was neither the ordinary nor necessary result of the negligence of the appellant complained of. The evidence objected to should have been excluded. (1 Southerland on Damages, 56.) The other assignments of error relate to matters which will not probably occur on another trial, and need not be considered. For the errors noticed, the judgment will be reversed and the cause remanded. Reversed and remanded; Opinion delivered April 15, 1887.