Katz v. Nix

ALEXANDER, J.

. This was an action in damages brought by the plaintiff Rv E. Nix, against the defendant, Joe Katz. The plaintiff owned a lot in the city of Waxahaehie on which there was situated a mule barn. The defendant owned the adjoining lot. The plaintiff alleged that the defendant piled junk iron by the side of and against the barn and caused a change in the flow of the surface water, so that the water flowed under the barn and weakened the foundation, and that the weight of the junk iron pushed the barn off of the foundation. The plaintiff alleged various items of damages. The case was submitted to the jury on a general charge, and resulted in a verdict for the plaintiff for the sum of $125. The defendant appealed.

The appellant complains that the verdict of the jury is unsupported by the evidence. We have examined the record very c'arefully and find that there is ample evidence to support the verdict of the jury. The plaintiff testified to a state of facts which, if believed by the jury, would have entitled him to much greater damage than that allowed by the verdict. It seems to be the appellant’s contention that it was the duty of the jury to either accept or reject the plaintiff’s testimony in toto, and that, since the jury did not allow the plaintiff the full damages shown by his testimony, the court must assume that the jury rejected his testimony, and therefore the verdict is unsupported by the evidence. We do not understand this to be the rule. The credibility' of plaintiff and the weight to be given his testimony was for the jury. The jury had a right to accept plaintiff’s testimony as being true as to a part of the damages claimed by him, and to reject the balance.

The appellant in his brief also complains because the verdict of the jury does- not point out which particular item of damages claimed by the plaintiff and testified to by him was sustained by the evidence. If the appellant desired a specific finding on each item of damages, he should have requested that the case be submitted on special issues.

Finding no error in the record, the judgment of the trial court is affirmed.