Appellant brought this action in behalf of himself and his minor children to recover damages for injuries claimed to have resulted to himself and children from the act of appellee. He alleged that he lived in a house on land which he had rented situated about fifty feet north of appellee’s railway track; that the land where the.house and railway were was so situated that but for the embankment on which the track was and a ditch formed between the track and his house-by an excavation made by appellee the water would drain off after rains;, but that the embankment erected and excavation made caused the water to collect and stand within a few feet of his house after rains, where it. became, by reason of its stagnant state, hurtful to the health of himself' and children and highly offensive both to sight and smell; whereby the health of all was injured, sickness brought on, and offense suffered.
An exception to the petition on the ground of misjoinder of the minor-children was sustained, and in this we think there was no error.
After this was done it was agreed that without amending the petition the cause might go to trial and appellant recover any sum which the evidence might show him entitled to recover in his own right.
If appellee created a nuisance by peí mitting water to stand on its right of way which would have passed off but for the embankment and excavation made by it, then it would be liable to appellant for any injury resulting to himself directly therefrom, and it would be liable to him for the loss of services of his minor children brought about by sickness caused *213by the nuisance, and it would be further liable for expenses necessarily incurred on account of sickness so caused.
Evidence was introduced tending to support the averments of the petition, which was not contradicted by other evidence, but the court in.structed the jury to find a verdict for the defendant. Appellant then took .a nonsuit, which he afterwards moved the court to set aside, and this was refused. The giving of the charge and the action of the court on the motion to set aside the nonsuit are assigued as error.
The petition stated a good cause of action, as the court held on general ■demurrer, and there was evidence tending strongly to sustain the averments ■of the pleading. This presented a case in which, under a proper instruction, the issues of fact should have been submitted to the jury. The charge withdrew the case from the jury and peremptorily directed a verdict for the defendant, and this was error.
After this action of the court appellant was under no obligation to permit a verdict to go against him, but might take a nonsuit, which it was ■error to refuse to set aside upon motion.
There is no appearance for appellee, and we are not advised of the ground on which the court below based its ruling, but it is suggested that the court may have been of the opinion that a tenant could not maintain an action for injuries resulting from a nuisance. If this was the holding it was erroneous.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.
Delivered October 17, 1890.