Berry v. Ryan et al.

[No. 2513.] Berry v. Ryan et al. Damages to Property — Offer to Repair. In an, action for damage to plaintiffs property by the tortious acts of defendants in blasting out a road bed for a railroad, evidence that defendants offered to repair the injuries to plaintiff’s buildings, which constituted the greater part of the injuries complained of, and that plaintiff declined the offer, was no defense to the action. Error to the County Court of Teller County. Mr. Scott Ashton, for plaintiff in error. Mr. James J. McFeely, for defendants in error. [MAJORITY — Gunter, J.] Gunter, J. This was an action for damages sustained to the personal and real property of plaintiff — plaintiff in error — through the tortious acts of the servants of defendants in error, in blasting out a road bed for a certain railroad. A trial to the jury resulted in a verdict and judgment for defendants in error. Original liability on the part of defendants in error was admitted. The only defense urged below was that defendants in error had offered to send workmen and materials, and repair the injuries to plaintiff’s buildings, which constituted in great part the injuries complained of. Plaintiff declined to accept this offer. This offer was manifestly not a defense to the cause of action admittedly existing in favor of plaintiff. This question, insufficiency of the evidence to sustain the judgment, was saved to plaintiff by an exception to the judgment. .The judgment will be reversed. Reversed. Thomson, P. J., not sitting.