Syllabus.

Richmond.

CITY OF RICHMOND V. WOOD.

January 14, 1909.

1. EVIDENCE-Opinions.-A witness may state whether or not at a given time he saw anything indicating that a sewer was too small to carry off the water. This is not the expression of an opinion demanding expert knowledge.

2. PLEADING-Sufficiency of Declaration-Allegation and Proof.-A declaration which alleges that water and sewerage from a defective city sewer entered into and upon certain property, to-wit, a lot of land with a dwelling thereon owned by the plaintiff, and which concludes with an allegation: "the said plaintiff was otherwise greatly injured and damnified," is broad enough to cover the damage done to all the buildings on the lot.

3. PLEADING-Declaration-Bill of Particulars--Code, Section 3249.— The object of section 3249 of the Code is to simplify and shorten pleadings, by providing that, if the declaration or other pleading do not present distinctly the grounds or subject of action, the plaintiff, if required to do so, should file such a statement of particulars as will put the defendant in possession of the character thereof.

4. PLEADING-Damages-General Damages-Allegation in DeclarationBill of Particulars.-Damages which are the necessary and probable result of an act of omission are termed general, and are legally imported and may be recovered, although not specifically claimed in the declaration. If particulars are desired, they may be demanded under section 3249 of the Code.

5. EVIDENCE-Experts-Knowledge of Facts-Hypothetical Questions.— Before the opinion of an expert, based on facts to which he has not himself testified, can be admitted, he must fully understand the facts already proved, and his testimony must come in response to a hypothetical question embodying the evidence.

6. MUNICIPAL CORPORATIONS Overflowing

Sewers-Evidence-Other Overflows-Complaints.-In an action to recover damages resulting from the overflow of a city sewer on a given date, other over

v.

Syllabus.

flows in the city on that date may be shown in order to prove that the rain storm on that day was extraordinary, but it is not permissible to show whether there were many complaints of overflows. Facts, not complaints, are admissible. Those who com

plained should be brought to prove the facts upon which the complaints rested.

7. INSTRUCTIONS—Applicability to a Single Count.-If an instruction properly states the law applicable to the facts which the plaintiff has pleaded and undertaken to prove, it need not tell the jury to which count of the declaration it is applicable, in the absence of a request to that effect, or some circumstances rendering it necessary.

8. INSTRUCTIONS-Jury Fully Instructed-Defective

Instruction.-In

structions are to be read as a whole, and if, when so read, it is seen that the law applicable to the case was fully propounded and without prejudice to the defendant, a verdict in favor of the plaintiff will not be set aside because some of the instructions did not fully propound the law.

9. MUNICIPAL CORPORATION--Obstructed Sewer-Extraordinary Storm.— If by the want of ordinary care a city sewer becomes choked, and a plaintiff is damaged as a result thereof, the city is liable for such damages; so, likewise, if a culvert becomes choked because of the want of ordinary care on the part of the city, and the condition of the culvert is the real and proximate cause of the injury to the plaintiff's property, the fact that there was an extraordinary flood at the time will not relieve the city from liability.

10. MUNICPAL CORPORATIONS-Inadequate Sewer-Extraordinary Flood. -An extraordinary flood which will excuse a city for an overflow of its sewers must be such as could not reasonably have been expected in that locality.

11. INSTRUCTIONS-Invited Error.-A party cannot object to an addition to an instruction in the same language as another instruction offered by him. He cannot invite an error and then be heard to complain of it.

12. APPEAL AND ERROR-Objection to Competency of Evidence.—A party cannot object to the competency of evidence for the first time in the appellate court.

13. VERDICTS-Proper Instructions-Sufficiency of Evidence.-The verdict of a jury will not be set aside as contrary to the law and the evidence where it appears that the case was fairly submitted to the jury under proper instructions, and there was ample evidence to support the verdict.

Opinion.

Error to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.

The opinion states the case.

Affirmed.

Henry R. Pollard and George Wayne Anderson, for the plaintiff in error.

John A. Lamb and Edmund C. Harrison, for the defendant in error.

HARRISON, J., delivered the opinion of the court.

This action was brought by the defendant in error to recover from the city of Richmond damages for injuries to his property, caused by an alleged overflow of one of the sewers of the city.

The declaration contained two counts, the first charging the city with negligence in allowing the sewer to become and remain obstructed, choked and out of repair; and the second averring that the city was negligent in maintaining a sewer which it knew was too small.

There was a verdict and judgment thereon for $300 in favor of the plaintiff, which this writ of error brings before us for review.

The first bill of exceptions taken by the city is to the action of the court in allowing the plaintiff, G. B. Wood, to state whether or not he had seen anything wherefrom he could say that the sewer on Fourth street was too small to carry off the flow of water there. This evidence was objected to upon the ground that the witness was not an expert and therefore not competent to express an opinion upon the subject of inquiry.

This assignment of error is not tenable. The question did not call for an expression of opinion, and the testimony only

Opinion.

related to a physical fact, namely, what the witness saw on the afternoon of the overflow, indicating that the sewer was too small to carry off the water.

The second bill of exception also relates to the testimony of the plaintiff, Wood; such evidence being objected to upon the ground that the witness was not an expert. Here again the witness was testifying to facts, and not giving expert testi

mony.

The third bill of exception is to the action of the court in permitting the witness, W. L. Smith, to testify as to the damage done to two out-buildings on the lot in question; it being contended that the declaration does not allege damage to out-buildings.

The declaration alleges that the sewer was so choked and obstructed that it would not carry off the water, and then says: "By reason whereof the said plaintiff says, that said water and sewerage so gathered and kept back as aforesaid entered into and upon certain property, to-wit, a lot of land with a dwelling thereon owned by the plaintiff," etc. The declaration concludes with the allegation, "the said plaintiff was otherwise greatly injured and damnified,” etc.

We are of opinion that the declaration was broad enough to cover the damage done to all of the buildings on the lot. It says the damage was done by the water entering upon the lot, and does not specify what particular buildings suffered therefrom.

In the case of Wrought Iron, &c. Co. v. Graham (C. C. A.), 80 Fed. 474, the plaintiff alleged a negligent burning of his dwelling and an out-house. He was allowed to prove and recover for the destruction of shade trees not mentioned in the declaration.

If, however, the defendant was not sufficiently advised of the particulars of the damage sustained by the plaintiff by reason of the alleged overflow of his premises, and desired further information as to such particulars, he could readily

Opinion.

have obtained the same under section 3249 of the Code, which provides, that "In any action or motion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defense; and if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration, or other pleading of such party, so plainly as to give the adverse party notice of its character."

The object of this section was to simplify and shorten pleading, by providing, that if the declaration or other pleading did not present distinctly the grounds or subject of the action, the plaintiff should, if required to do so, file such a statement of particulars as would put the defendant in possession of the character thereof. City of Richmond v. Leaker, 99 Va. 1, 37 S. E. 348; Wood v. Am. Nat'l Bk., 100 Va. 306, 40 S. E. 931.

In the case last cited it is held that damages which are the necessary and probable result of the act of omission are termed general, and are legally imported and may be recovered, although not specially claimed in the declaration; that if a more specific statement of the elements of damages be desired, it may be demanded under the provisions of section 3249 of the Code.

The fourth bill of exception is to the action of the court in not allowing Jackson Bolton, shown to be a civil engineer of large experience, to answer the following question: After the witness had stated that he was familiar with the carrying capacity of sewers and the general causes of overflows, he was asked: "Applying that familiarity to the conditions out there on the date of this storm, what do you say was the difficulty?"

This witness was not shown to have had any familiarity with the conditions which caused the plaintiff's damage on the date of the storm. Before the opinion of an expert, when it is based on facts which he has not himself testified to, can be admitted, he must fully understand the facts already proved,