Southern Railway Co. v. Ward

54 S.E. 151, 125 Ga. 361, 1906 Ga. LEXIS 159

• Court: Supreme Court of Georgia
• Decided: May 14, 1906
• Status: Published

Opinion

Pish, O. J.

1. On the trial of an action for damages for loss of crops, alleged to have been occasioned by defendant placing obstructions in a running stream below plaintiff’s land, thereby rendering the land unfit for cultivation by reason of back-water produced by such obstructions, filling up ditches and overflowing the bottom land, where the cause of the unproductiveness of the land was sharply in issue, it was error, requiring the grant of a new trial, for the court to refuse to allow the defendant to prove by the plaintiff, on cross-examination, “that all of the bottom lands in [the county where plaintiff’s land was situated] were filled up at the same time that his (the plaintiff’s) lands were filled up, and rendered useless; that the conditions were general throughout the county such as existed on his own'land.” See, in this connection, Atlantic & Birmingham Ry. Co. v. McKnight, ante, 328.

Argued January 26, Decided May 14, 1906.

Action for damages. Before Judge Beagan. Henry superior court. August 7, 1905.

O. E. Battle, for plaintiff in error. Westmoreland Brothers, contra.

2. This assignment of error is unlike that made in Ferguson v. McCowan, 124 Ga. 669. Tliere the error alleged was, “that the court refused to allow the plaintiff ‘to show [by the maker of a written instrument purporting to convey certain personalty] that the property sued for was the property of’ the plaintiff.” This was held not to be a good assignment of error, “as it is not stated how or by what character of evidence such fact was attempted to be shown by the witness.” In the present case defendant offered to prove by plaintiff a given fact, which was presumably within his personal knowledge, quite a different thing from proving title to property. Judgment reversed.

All the Justices concur.