Cue v. Breeland

Whitfield, C. J., delivered the opinion of the court. The wrong done was one done to appellee, not the county. That wrong consisted in putting the appellee in a situation where he was bound to rebuild, and it is the cost of the rebuilding which is the measure of his damage. The declaration proceeds on this idea, and the demurrer was properly overruled. With the damages here sought to be recovered the county had nothing to do. The fifth charge asked by the defendant properly states the abstract principle of law, but the sound principle had.been announced substantially in defendant’s third and fourth charges. If the creek was navigable, it was yet the duty of appellant not to so float his logs as wilfully to injure appellee. There was evidence showing that the appellant’s authorized agent, while engaged in the master’s work, told an employe to “let the logs loose and let them make or break; ” that they were let loose late in the evening; that they could have been guided through by four men stationed on the bridge, and that no effort was made to do this. Bio utere, etc., fits in here. If the jury believed this, and it would seem they did, then a case of wilful wrong was made out, and error in refusing the fifth instruction for defendant, and the one as to navigability conferring superior rights, could not possibly, in that view, be reversible error. We think the right verdict has been reached, and the judgment is Affirmed.