Birmingham Railway, Light & Power Co. v. Long

PELIIAM, J.

Count A of the complaint, on which the plaintiff’s case Avas submitted to the jury, is sufficient, or at least not defective in any particular pointed out by the demurrers attacking it. The property alleged to bo damaged is definitely described, as is also the point of the excavation complained of as having-been made by the defendant, and the location of the property with reference to the excavation designated by proper and specific averment. The interference to ingress and (*gres,s of the property is alleged as the proximate consequence resulting to the plaintiff’s abutting property from the excavation made by the defendant in the public highway.

There was no error committed by the court in permitting tlie defendant to cross-examine the witness J. II. Quill on the question of damages as referable to the probability of the plaintiff having to build a retaining wall because of the excavation being made. While the measure of recoverable damages is to be determined by the reasonable market value of the property just before and immediately after the injury complained of, this evidence was proper to go to the jury as a circumstance to aid the jury in reaching a conclusion as to whether or not the property had deteriorated in value, and to estimate the amount of deterioration, if any. — Town of Eutaw v. Botnick, 150 Ala. 429, 43 South. 739, citing Montgomery & Western R. R. Co. v. Varner, 19 Ala. 185; Names v. Brownlee, 63 Ala. 277. See, also, Highland Ave & Belt R. R. Co. v. Matthews, 99 Ala. 24, 10 South. 267, 14 L. R. A. 462.

That portion of the oral charge of the court to which an exception was reserved, when construed in connection with the whole charge and as applicable to the evidence, is a correct statement of the law as to measure of damages recoverable. — B. R., L. & P. Co. v. Long, 5 Ala. App. 519, 59 South. 382, and authorities there cited.

Affirmed.