This was a suit, in the nature of an action on the case, at common law, by The Lafayette Planhroad Company against The New Albany and Salem Railroad Company, to recover damages for injury done by the latter company to the former, in the construction of a railroad..
The plaintiff recovered on the first trial. The defendant moved for a new trial on two grounds—
1. That one of the jurors who sat upon the trial, was not a householder.
2. That one of the jurors who sat upon the trial, did not understand the English language.
The Court granted the new trial for the second cause.
We are not prepared to say that the new trial might not have been granted for the first cause. The fact that the juror was not a householder, was a good cause of challenge. But the challenge was not made, nor was the juror interrogated as to his qualifications.
Had the defendants known that the juror was incompetent at the trial, their failure to raise the objection would have been a waiver of it. It appears that they were then ignorant of the fact. Whether their neglect to make inquiry as to the fact, before accepting the juror, should be held a waiver, we need not here decide, as we are clear that the new trial was properly granted for the second cause. Hogshead v. The State, 9 Humph. 59. That cause was, as we have seen, that one of the jurors could neither read nor write the English language, nor could he understand it when spoken to him upon subjects, other than such as related to his particular business, farming, and then but imperfectly. The defendants were not aware of *92the fact till after the trial; and though they might have examined the juror touching this point before accepting him, we do not think the failure to do so can be considered negligence. The party might well presume that the officer had called a juror competent in this particular.
The fact that the juror was thus incompetent, was proved by his own admission under oath; and it is objected that this mode of establishing the fact was forbidden by the rule, that jurors are incompetent to impeach their verdicts. The case does not fall within the rule. It was not a fact as to misbehavior of the jury, but as to competency to serve as such.
* On the second-trial, the judgment was for the defendants.
The plaintiffs appeal, and seek a reversal of that judgment.
The controversy arises upon these two general facts—
The plankroad company had constructed their road..
Subsequently, the railroad company constructed theirs, crossing the plankroad, not at right angles, but at such an angle as occasioned the extending of the railroad almost parallel with the plankroad, for about a quarter of a mile, and so near to it, as, it is alleged, to render traveling upon the latter, dangerous, owing to the fright of horses by the locomotives, whereby the franchise of the plankroad company was depreciated in value, and injured to-dollars, &c.
The legal propositions applicable to these facts, are well settled.
1. The grant of a charter for a road, a bridge, or a ferry, does not estop the legislature from granting a subsequent charter for a road, a bridge, or a ferry, which may compete with the former in the transportation of freight and passengers between given points; and the simple fact that the two run parallel, and mutually diminish the business of each other, is no ground for a claim by either, to damages. Bush v. The Peru Bridge Co., 3 Ind. R. 21.
2. The ground occupied by an existing company may *93be taken, if authorized by the legislature, by a subsequently chartered company, upon making compensation. The Newcastle, &c., Co. v. The Peru, &c., Co., id. 464.
3. The franchise of an existing company may be thus taken. Redf. on Railw., p. 129.
4. Where any part of the road-bed, or track, of an existing company, or the property of an individual, is taken; so that a proceeding under the statute may be had for the assessment of damages, all the damages occasioned by the taking, both to the ground and franchise, must be assessed and recovered in the statutory proceedings. The Newcastle, &c., Co. v. The Peru, &c., Co., supra.—Redf. on Railw., p. 152, et seq. See, also, Perk. Pr., p. 680. It is settled that the appraisal of land damages, is a bar to claims for injuries by fire from the engines, obstructing access to buildings, exposing persons or cattle to injury, cutting off the flowage of water to buildings, from springs, &c., even though such damages were unknown to the appraisers at the time of assessing the damages. Redf. on Railw., p. 154.
5. But where no part of the property of an existing company, or an individual, is taken, in such case, unless the statute plainly authorize a proceeding to assess damages for consequential injuries, such damages may be recovered in an ordinary action at law. The Evansville, &c., Co. v. Dick, 9 Ind. R. 433.—Redf. on Railw., supra. But,
6. In the construction of the work for which the property of another is .taken, reasonable care and skill must be exercised, or the party will be liable to an. action for the tort, as at common law. Conwell v. Emrie, 4 Ind. R. 209. —Redf. on Railw., p. 153.—6 Gray (Mass. R.), 544.—10 Cush. 385.
In the case at bar, the jury found that the railroad company constructed their work with care, skill, and good faith. No complaint is made of the instructions given to the jury by the Court.
But it is contended that the railroad company might have selected a different line for their road, whereby they would have injured the plankroad company less. It is too *94late now to raise this question. The plankroad did, as we may presume, after the railroad company had made their location, apply, under the statute, for damages, and claim and recover such as the location selected would occasion (see The Martinsville, &c., Railroad Co. v. Bridges, 6 Ind. R. 400); and they might have had an injunction till the damages were paid; and, perhaps, to have controlled the location.
R. Jones, S. A. Huff, and R. C. Gregory, for the appellants (1). H. W. Chase, J. A. Wilstach, J. E. McDonald, and S. C. Willson, for the appellees (2).In the proceedings for the assessment of damages, the question of location was examinable. The New Albany, &c., Railroad Co. v. Connelly, 7 Ind. R. 32. It is not denied that that mode was within the limits prescribed by the charter.
Per Curiam.The judgment is affirmed with costs.