Central Railroad & Banking Co. v. Wood

McCay, Judge. 1. The action in this case was for erecting a pond, and thereby, as a consequence of such erection, causing sickness in [518] the plaintiff’s family. Were the pond a mere incident to the embankment there might be some ground for the claim that the amendment is only another mode of stating the same cause of action. But the evidence is clear, and the proposed amendment conforms to the same idea that the embankment and the pond are different enterprises. Ordinarily, water is allowed to pass through a railroad embankment by a culvert. But the railroad company here undertook to make a pond. The water was gathered, dammed up around a tube or well until it rose to a certain height, when it ran over into the well, and thence down the well into the culvert and under the enibankment. It was the purpose of the company to make a pond, and it was for making this pond that the action was bi'ought. The damages wore laid as flowing by consequence therefrom. The amendment introduces the embankment as the cause of the damage, and claims that defendant has become liable, not., for erecting a pond, but for throwing up the hitherto covered up earth, and exposing it to the sun and air, and forming the malaria in it, so as to cause sickness, etc. These are essentially different causea of action. The verdict, as it stands, is clearly no bar to a new suit for erecting the embankment. Our law permits any number of torts or contracts to be joined in one suit. But section 3453 of the Code expressly enacts that no new and distinct cause of action shall be introduced by way of amendment. We think this is a new and distinct cause of action, and that it was proper, under the express words of the Code, to refuse it. It follows that the new trial should not have been granted on this ground. 2. But it is contended that admitting this, the judgment granting the new trial is right, because the other grounds are sufficient. True, the judge overruled these grounds, but if the judgment was right it is immaterial what reason the court gave for it. We recognize this as a sound position, excejK so far as that in considering these grounds this court is (o treat them as not sufficient, in the discretion of the judge, to authorize a new trial. We think there were errors committed by the court in his rulings on the trial. He should have given [519] the charge asked for as to the right of the plaintiff to recover the value of the drugs, etc., if it were proven that the pond caused the sickness, and we think there was rather too much particularity in pointing out to the jury the considerations unfavorable to the plaintiff’s case. We are not satisfied either, with the charge as to the medical books. It gave a sanction to the argument of the defendant based on those books that belongs only to sworn testimony. But we do not think these errors vitiate the verdict. Under the evidence it is a proper verdict. The plaintiff’s case before the jury was quite a weak one. The pond very evidently was innocent of the damage claimed to be caused by it, and the jury must have found the same way had there been nothing in the rulings of the judge to complain-of. The object of this court is not to correct abstract errors of law, but to interfere when parties suffer wrong from such errors. The question is not simply did the court err? But did he err to the hurt of the cause of the plaintiff in error. We do not think these errors hurt the plaintiff’s cause before the jury. The verdict-is a proper and just one under the evidence, and one that' the jury must, with proper consideration of the facts, have rendered had none of the matters complained of occurred. As the amendment was properly rejected, wé therefore think there ought to be no new trial. Judgment reversed.