Opinion by
Mr. Justice McCollum,On the first trial of this case the court below directed a verdict for the defendant and entered a judgment thereon. On the appeal from the judgment to this Court it was held that the evidence required the submission of the case to a jury. The nature and tendency of the evidence was clearly defined in the opinion of our Brother Gbeen reversing the judgment, and from it we quote that portion of it applicable to the controlling questions in the case on the first and second trials of the same: “ The evidence for the plaintiffs in this case tended strongly to establish several conditions as the result of the defendant’s use of the stream as an open sewer. First, that it created an increase in the natural flowage of the stream so that in time of ordinary rains the banks of the stream were overflowed and the plaintiffs’ land was washed with sewage and offal, and the banks of the stream were broken down and washed away. Secondly, that considerable quantities of filthy and offensive matter were allowed to accumulate on the banks and in the stream, and not only to obstruct the flow, but to emit disgusting, unhealthy and injurious smells and odors, which extended to such a degree over the plaintiffs’ land and buildings as to render the same uninhabitable and prevent the owners from renting the same for any sum whatever. . . . Third, there was also evidence showing that the stream was obstructed so that the bottom was considerably elevated by the accumulations of sand, solid refuse and other substances, which the defendant did not clean out, but allowed to increase from year to year, and thus caused frequent overflows upon the land of the plaintiffs.” It also appears in the opinion from which we have quoted that the conditions aforesaid presented pure questions of fact determinable by the jury upon the evidence applicable to them, and that the evidence submitted on the trial was sufficient, if credited, to support the plaintiffs’ contention.
On the second trial of the case it was conceded by the court below that for an injury to the property of the plaintiffs through the negligence of the defendant in the care and use of the sewer the latter was liable to the former. The evidence submitted by the plaintiffs on the first trial was repeated on the second as to all matters essential to their claim, and it was materially corroborated by additional testimony on the same subject. It is *441not necessary to specify herein all the essentials of the plaintiffs’ claim because they sufficiently appear in the quotation from the opinion'already referred to.
On the second trial of the case the court below conformed substantially to the instructions of this Court on the appeal from the judgment entered on the verdict directed by the court below on the first trial. While at the first glance at the charge under review there seemed to be a departure from the instructions on the first appeal, a more careful inspection of it resulted in the conviction that it furnished no material ground for a reversal of the judgment. The charge conceded the right of the defendant to use the stream as an open sewer, and recognized its liability for any injury done to the adjoining property through its negligence. The learned judge in his charge said that he had no recollection of any evidence showing that the stream was clogged up, or cast out any of its refuse matter on the plaintiffs’ property, in the ordinary flow'of water, or “ in any time except during the time of flood or high water—rain,” but he also said that this was a question of fact for the jurors to determine upon the evidence as they remembered and understood it. It was more than once distinctly stated in the charge that if the defendant, having the care of the open sewer, allowed refuse and impure matter to accumulate in the stream and upon its banks, obstructing the flowage and emitting poisonous odors injuriously affecting the property and health of the inhabitants, it was liable to the injured parties for the consequences of its negligence. It was as distinctly stated in the charge that it was for the jury to determine whether the defendant’s negligence and the claim of the plaintiffs were established by the evidence in the case. We cannot therefore say that the charge was inadequate or misleading.
We discover no error in the ruling complained of in the first and second assignments; nor can we find in the third assignment any ju^t cause for reversing the judgment, in view of the fact that two witnesses subsequently testified to the matter which was rejected on McGraw’s cross-examination, and was not questioned or contradicted on the part of the defendant.
Judgment affirmed.