Mayor of Macon v. Small

Simmons, C. J. There are numerous grounds of complaint in the motion for new trial. We have carefully read the record of the case, and find that all the assignments of error which relate to matters of law are fully and comprehensively •covered by the charge of the learned trial judge. This charge we have ordered reported in full with the report of the case. It is a clear and full presentation of the law which, under the facts in evidence, governed the issues involved. In regard to the admission of evidence complained of in the motion for new trial, there was no error. If the city authorities negligently constructed a sewer so as to damage the plaintiff’s property, the latter would be entitled to recover the expenses incurred in preserving and storing his property after some damage had been sustained. Indeed it was his duty to store it and try to preserve it in order to decrease the damages sustained by reason' ■of the defendant’s negligence. As to the newly discovered evidence, it appears that after the trial the city authorities claimed to have dug certain ditches and trenches and by this means discovered that the sewer running from Small’s cellar did not connect with the sewers which he alleged had been negligently repaired. This was a question at issue upon the trial, and the evidence is therefore cumulative in its nature. Besides, it does not sufficiently appear that the city authorities could not have ascertained these facts before the trial. The declaration put the authorities upon notice as to the manner in which Small claimed to have been damaged, and in the counter-showing made by Small as to this newly discovered evidence, he- deposes that before the,trial he requested the city authorities to make [324] this same investigation, and they declined to do so. This counter-showing is not contradicted or disputed, and it would, therefore, appear that by sufficient diligence the facts now claimed to be newly discovered could have been ascertained before the trial. Judgment affirmed. All the Justices concurring.