This is an action for damages in diverting and ponding water by the defendant's embankment, causing sickness of plaintiff's children and the loss of their services and the expense of the doctor's bill and medicine.
Verdict and judgment for the plaintiff. Appeal by the defendant. The defendant's roadbed was constructed at this point in 1906. By reason of the embankment in the defendant's track in front of plaintiff's house surface water was ponded back under the house. To relieve this the defendant put a tile drain in this embankment in 1910. Before the embankment was placed there, there was a natural drainage of the surface water. The tile drain at first took the water off. Afterwards, in 1911, it became clogged, ponding water under the house, with the result, as witnesses testified, of causing plaintiff's children to have malarial fever. There was evidence of the cost of the doctor's bill and medicine and plaintiff's loss of the services of his children, who were 13, 15, and 18 years of age, respectively.
The original complaint was based upon damages sustained by the construction of the embankment in 1906. By the amended complaint the cause of action was based upon the failure to keep the pipe open since May, 1911, and the damages caused thereby. The demurrer ore tenus was properly overruled. If there had been any valid objection to amending the complaint, it had been waived by the amended answer (3) which had been filed, and the court ruled that only such damages could be recovered as resulted to the plaintiff by the stoppage of the drain under the roadbed, as alleged in the amended complaint. The *Page 37 issues submitted were not for damages from the original construction of the embankment, but whether "the defendant negligently failed to keep open and maintain the drain pipe as alleged in the amended complaint," and, "If so, what amount of damages the plaintiff was entitled to recover by reason thereof."
This action can be maintained, as was held in Duval v. R. R.,161 N.C. 448, and cases there cited. The action is not for damages from the original construction of the roadbed or permanent injuries, which would be barred in five years, but is for the subsequent injury caused by failing to keep the title drain open within three years before amended complaint was filed.
Exceptions 2 to 9 are to the testimony relative to the drain pipe being allowed to clog up, and the damages sustained thereby. This was clearly competent. Duval v. R. R., supra.
Exceptions 10 to 13 are to the testimony that the sickness of the boys, the plaintiff's children, was caused by the ponding of the water, and was competent. Exceptions 4 and 16 are for the refusal to nonsuit, and need not be considered. Exceptions 17, 18, 19, 24, and 25 are to the refusal of instructions prayed by the defendant for the purpose of raising the question as to plaintiff's right to recover upon the evidence in this case, and likewise require no discussion. There was the testimony of the physician that the ponded water bred mosquitoes whose bite caused malaria.
Exception 15 was to the refusal of the court to exclude the following question asked on cross-examination: "If you clean that sewer out, will it drain the land?" We see no error in admitting the question.
Exceptions 21, 22, and 23 are to the refusal of the instruction asked. "The jury could not consider any element of damage save and except the expenses incurred by plaintiff for medicine and expenses." It was alleged and shown that the three boys, sons of the plaintiff, were incapacitated from rendering any services for several weeks. These boys were 13, 15, and 18 years of age. They were before the jury, and while there was no evidence of any special services rendered by them to their parents, the value of their loss of time was a matter to be taken into consideration by the jury.
Exception 26 was abandoned and exception 27 was because the court charged the jury that the plaintiff must satisfy them "upon the greater weight of the evidence of every essential fact necessary to prove his case, that this drainway was put in by the railroad and that it failed to maintain and keep it in proper order, and that by its failure in this duty the water was caused to be ponded on the premises of the (4) plaintiff. If so satisfied, to answer the first issue `Yes.'" We do not see why the defendant should object to this charge. *Page 38
Exception 28 was because the court charged the jury: "You can take into consideration your own personal observation of the children, who have been exhibited, as to their earning capacity, together with all the evidence in the case about what the children did and what their services would be worth to the father during the five weeks they were sick. What ever you find them to be worth, you will add to the amount of damages, if any you may find, under the second issue. You are also to consider whether their earnings have been diminished as a result of their sickness." It does not appear that the children were hired out, and what would be the reasonable value of their services around the home was a matter of common knowledge of which the jury could judge. It was not a matter of expert testimony.
It is now the accepted doctrine of the medical profession that malaria is transmitted by the bite of a certain kind of mosquito (anopheles,) and that these mosquitoes are bred in standing water. The learned counsel for the defendant expressed his belief that mosquitoes were only bred in running water, and doubted the correctness of the doctrine that malaria was transmitted by their bite. But there was the testimony of the physician to this effect, and the court properly left the matter, being one of fact upon the testimony, to the jury. Indeed, there was no evidence to the contrary.
The other exceptions are merely formal. Indeed, the controversy seems to have been almost entirely over the facts. We find no error in the exceptions as to the law.
No error.
Cited: Perry v. R. R., 171 N.C. 40 (2c); Milling Co. v. Highway Com.,190 N.C. 697 (5c); White v. Comrs. of Johnston, 217 N.C. 333 (3c).