Texas & New Orleans Railway Co. v. Goldberg

Citations

• 68 Tex. 685
• 5 S.W. 824
• 1887 Tex. LEXIS 755

Syllabus

<p>1. Amendment—Practice.—The statute which permits the pleadings filed in a cause to be amended before the parties have announced themselves ready for trial, and not afterwards, is directory. The court may in the exercise of a sound discretion permit an amendment after an announcement of ready for trial by the parties.</p> <p>2. Practice—Surprise—Continuance.—In the absence of an affidavit made by a party who seeks the continuance of a case on account of surprise, when his adversary has been permitted to file an amended pleading, after both parties have announced themselves ready for trial, the action of the court in refusing the continuance will not be revised, unless it shall be apparent from an inspection of the record that the party seeking the continuance could not have been prepared for trial because of the amendment.</p> <p>3. Case Distinguished.—This case distinguished from Cowan v. Williams, 49 Texas, 380.</p> <p>4. Damages.—It is no defense to an action against a railroad company for the recovery of damages caused by its construction work contiguous to the. property of plaintiff, that his damages was such as was common to all adjacent property holders. The fact that others were injured in like manner by the corporation, can not impair his right of compensation for the damage inflicted.</p> <p>5. Damages.—Evidence that a defendant railway company dug a cut in a street in front of plaintiff’s building from four to six feet deep for its road bed, leaving no room between the cut and the side walk for vehicles to pass each other, and that plaintiff’s building was endangered by the sparks emitted from the passing engines of defendant, is sufficient to sustain a verdict and judgment for damages against the defendant company.</p>