LIPSCOMB v. RAILROAD CO

JUDGE WATTS,

acting Associate Justice. The above entitled action was commenced on the 11th day of August, 1900, and was tried by his Honor, Judge Aldrich, at the summer term of Court for Richland County and a verdict was rendered in favor of plaintiff for $1,800. The complaint alleges in substance: that during the month of October, 1899, and for some years prior thereto, the plaintiff was the owner of the Congaree Brick Works, together with a tramway, cars, cable and other appurtenances, which were used for the purpose of conveying clay from the plaintiff's clay bed into the mill house, where the clay was crushed, ground up and made into brick. During the month of October, 1899, the defendant being anxious to construct its track through and across plaintiff's said tramway, solemnly covenanted and agreed with plaintiff, that if he would allow it to take up and renew his said tramway, and allow it to construct its railroad through and across it, that it would take up said tramway at the end of said brick season, to wit: about the first of November thereafter, and construct for him a good, safe and secure tramway, from his mill-house to his clay bed, and would construct said tramway out of good material and put it in first class condition; that it would elevate said tramway so that trains could pass under it, and would add on to plaintiff's mill-house so that the machinery could be raised to correspond with said tramway, and would fix the machinery to correspond with it so that said brick works could be easily operated with the same number of laborers and the cost of operating it would not be increased, and that it would have said tramway completed by the commencement of the brick season, to wit: in February, 1900. Having entered into the foregoing agreement, the defendant took up and removed plaintiff's tramway about the first of November, 1899, but made no attempt to erect the new tramway until about the middle of April, 1900, and did not complete it until in May, during all of which time plaintiff had insisted upon the erection of said tramway, telling the defendant that he was being greatly injured in consequence of it, and that he would hold it responsible for the output of said brick works. The tramway constructed by the defendant was defective, unsafe and insecure, and not the kind of tramway that it had agreed to erect for the plaintiff. For more than sixty days the plaintiff was deprived of the use of his brick works; had to pay his rent, his laborers, and feed his mules, etc., which was all occasioned by defendant's breach of contract. The daily output of plaintiff's brick works was 30,000, and the value of the brick was $6.50 per 1,000. Defendant denied the material allegations of the complaint. After the case was tried, defendant appealed, and alleges error on part of Circuit Judge in seventeen exceptions.

We do not propose to take up these exceptions seriatim, for, as I take it, the seventeen exceptions only raise three questions, to wit: Because his Honor, the Judge, allowed testimony to be introduced as to whether the new tramway was more destructive to cables in drawing cars than the old, and how did the cables last on the old tramway as compared to the new. Under the allegations of the complaint, his Honor committed no error in admitting the testimony and doing as he did, submitting the whole question to the jury as to whether or not the cables were a part of the tramway.

It is alleged in several exceptions that his Honor erred in allowing testimony to go to the jury as to the rental value of the brick-yard during the time the plaintiff alleges he was wrongfully deprived of the use of it by the defendant's act.

We see no error in this, for his Honor, in ruling upon the testimony, said he let it in, that it "Might go to the jury to aid them in ascertaining what would be the value of the use of the premises for sixty days, if they should find that the plaintiff is entitled to the use for sixty days, and has been deprived of the use sixty days, as alleged in the complaint;" and his Honor, in his charge to the jury along this line, told them, in speaking of the defendant's seventh request to charge this: "I have ruled that the testimony here was competent to go to the jury for whatever the jury might consider it entitled to, to show the value, the use of the premises, for the time of which the plaintiff was deprived, if he was deprived, and illegally deprived, of the use of the premises." For certainly, if the plaintiff was kept out of his premises for sixty days, or any other length of time, in estimating his damage the rental value for that time would be competent evidence to be considered by the jury in arriving at the amount of damage sustained by him.

As to admitting in evidence the report of T.A. Rice, the testimony clearly shows that Mr. Rice was the agent of the defendant and acting as such when he made the report, and we see no error there.

I have carefully read over the whole case and exceptions and can see no error on the part of his Honor, the Circuit Judge.

It is, therefore, the judgment of this Court that the judgment of the Circuit Court be affirmed.

JUDGE WATTS sat in place of JUSTICE POPE, disqualified.