December 13, 1929. The opinion of the Court was delivered by I cannot agree with the conclusion of Mr. Justice Carter, and think the Circuit Judge was correct.
The law, as I understand it, in cases of this character, requires the plaintiff to show some damage to himself differing in kind and degree from that suffered by the public generally. The only damage of that kind really attempted to be established was as to the blacksmith business of the plaintiff. On his direct examination, the plaintiff was asked by his counsel this: "Has your business (as a blacksmith) been injured since this road was closed?" The reply was, "I haven't had as much since this thing occurred; whether this is the cause of it, I don't know, to tell you the truth, but I haven't had as much business for the last three years." That testimony certainly did not establish the plaintiff's claim. Therefore I think the nonsuit was proper.
Judgment affirmed.
MESSRS. JUSTICES COTHRAN and STABLER concur. *Page 302
MR. CHIEF JUSTICE WATTS and MR. JUSTICE CARTER dissent.