Loss of stock. The witness Johnson stated fully his means of information as to the loss of stock in plaintiff's pasture, and stated what he saw; and we are of the opinion, looking to all the facts of the case, that the court did not err in permitting him to estimate the number of dead animals. It is sometimes the case that no better evidence can be obtained upon questions relating to time, quantity, number, speed, distance, and the like; and when this is so, such evidence, derived from actual observation, is very generally held admissible. Such evidence, however, should never be received unless the witness is shown to have been in a position, and to have used the means necessary, to enable him to form an estimate. The evidence of the witnesses Broussard, Ben Johnson, John Johnson, Bradley Johnson, and Thomas Cuniff, tending to show the number and value of animals belonging to the plaintiff that died, and the cause of their deaths, was clearly admissible; as was the evidence tending to show the value of grass in plaintiff's pasture destroyed by the overflow, as well as the injury resulting from the fact that, the land being long submerged, it was rendered incapable for a time, after the water subsided, of producing grass as it did before the overflow. Injury to pasture. Measure of damage. Such It is urged that the court erred in not instructing the jury that the measure of damage for injury done to the pasture was the value of the grass at the time the overflow came over it. In cases in which the destruction of grass is the basis of the action, no further injury being alleged, the rule contended for would be the true one. a rule, however, would not be applicable to such a case as is made in the petition in this case. It is claimed, not only that the grass on the land at the time the overflow came on was destroyed, but that the water remained over the land for several months, thereby preventing the growth of grass, and use of the pasture; and, in addition to this, that, after the water subsided, on account of its long continuance, the earth did not yield its grasses for a time as it had before, and would have continued to do if the land had not thus been submerged. The charge clearly stated to the jury what facts would render the appellant liable, and informed the jury, in terms that could not have been misunderstood, that the appellee would not be entitled to recover for any injury he might have avoided by the exercise of due care. The charge also clearly informed the jury that the appellant would not be liable, if the overflow resulted from extraordinarily heavy rains and high water in the rivers, against which ordinary prudence could not have provided; and that this was not repeated in every paragraph of the charge which bore on the question of the appellant's liability, could not have misled any jury of ordinary intelligence. There being evidence such as would have enabled the jury to make estimates of damages in the manner suggested in the charge we now quote, the court gave this charge: "If they found for plaintiff, to determine the amount of damage, if any has been shown you, and to inquire whether, from the evidence, any injury is shown to plaintiff's pasture, if they found the standing water, as before explained, covered it; to find what, if any, the evidence showed them was the value per acre of the land for pasturage of horses and cattle during the year 1885; that they might find what, if any, was the value for one year, and then take the proportionate rate for the length of time, if any, the evidence showed them the plaintiff was deprived of his pasture; or that they might find the value of the use of the land for pasturage, if any be shown by the evidence, for one day, week, or month, if any be shown, and to that add, if any be shown by the evidence, the number of days, weeks, and months, if any, as was shown, and arrive at the amount of time, if any, plaintiff was deprived of his pasturage." A charge of this kind is objectionable in any case; and it is always better to leave the jury to reach their conclusions, under the evidence properly before them, and the charge of the court as to the law of the case, through such modes of reasoning and processes of thought as each juror may, unaided by suggestions from the court, naturally and without constraint pursue. In this case, the charge, however, was calculated to mislead; for it assumes that the value of pasturage is the same for any period during the year. The court could not judicially know this to be true; and it may be that pasturage for a given time in one part of a year will be of less or greater value than it would be for a like time during some other part of the year. The evidence tends to show that this was true. The other assignments of error need not be considered. For the errors noticed the judgment will be reversed, and the cause remanded. Measure of Damages for Injury to Property caused by Overflow. - See Gulf, Colorado, & Santa Fé R. Co. v. Pool, ante, 187, and note 190. WALDROP ข. GREENVILLE, L. & S. R. Co. (South Carolina Supreme Court, March 1, 1888.) Culvert-Insufficiency - Negligence - Crops on Right of Way. — In an action to recover damages for injuries to a growing crop sustained through a flooding of the same, caused by a defective culvert in the road-bed of defendant's track, a question asked the plaintiff on cross-examination, " How much of the crop damaged was planted within a hundred feet of the railroad track?" is properly allowed where defendant had pleaded that injury to crops growing on its right of way could not sustain an action. Same Evidence Declarations of Servant-Scope of Employment. — The duties of a section master are limited to keeping the track in order for the safety of trains, and declarations made by him concerning the sufficiency of a culvert not falling within the scope of his duties are inadmissible, in an action for damages for the overflow of land. Same Evidence of Damage Nonsuit. In such action, although plaintiff may have testified to the defective character of the road-bed and culvert, the accumulation of water in consequence, and the overflow and injuries of his land and crops, a nonsuit is properly granted if he fails to introduce in evidence as to the amount of his loss; and an averment in the answer that plaintiff had agreed to take, and defendant to pay, five dollars in satisfaction of all damages before the suit, is not sufficient to send the case to the jury. Surface Waters — Obstruction by Lower Proprietor. Semble that the proprietor of lower lands cannot obstruct the flow of surface waters across his lands from the lands of an adjoining higher proprietor, except when there is a necessity for its exercise in the proper enjoyment of the ownership of the property for the protection of which it is exercised, and there is no reasonable way of preventing the injury. APPEAL from Common Pleas Circuit Court, Abbeville County. Action to recover damages for an injury to land and crops. Plaintiff appeals from a nonsuit ordered upon defendant's motion. The facts are stated in the opinion. Graydon & Graydon for appellant. Fos. Ganahl and Eugene B. Gary for respondent. SIMPSON, C. J.-The appellant brought the action below to recover damages for an injury to his land and crops, alleged to have been occasioned by a defectively constructed road-bed and an insufficient culvert, by reason of which water, instead of flowing off naturally, had accumulated Facts. - I SURFACE WATERS - DAMAGES FOR OBSTRUCTING FLOW OF. See full discussion of the question of surface waters and the rights of lower and adjacent owners in Philadelphia, W. & B. R. Co. v. Davis, ante, 143, and note 148-151. and overflowed his land, rendering the same unfit for cultivation, and injuring his crop growing thereon. Upon the close of appellant's testimony, on motion of respondent, his Honor Judge Fraser granted a nonsuit in a short order, of which the following is a copy: "At the close of plaintiff's testimony in the above-stated case, the defendant having moved for a nonsuit on the ground of failure of proof on the part of the plaintiff, and it appearing to the court that the motion should be granted; now, on motion defendant's attorneys, it is ordered that Nonsuit. order. the plaintiff be nonsuited, and the complaint herein be dismissed." The appeal questions the correctness Grounds of of this order, upon several grounds; to wit, "(1) Be- objection to cause it was error in his honor to permit defendant's attorneys to ask, and to require plaintiff upon crossexamination to answer, the following question: How much of corn and cotton which you claim to have been damaged was planted within one hundred feet of the railroad track?' (2) Because it was error in his honor to refuse to allow plaintiff to state what he said to the section-master having in charge the piece of the road which runs through the plaintiff's land, and what reply the section-master made. (3) Because he was in error in holding, at the conclusion of plaintiff's testimony, that there was no evidence to go to the jury, and granted a nonsuit. (4) Because it was error in his honor, after the testimony was taken, to grant the order of nonsuit; the said order being in all respects contrary to law and the evidence taken upon the trial." Evidence. The appellant alleged, in his complaint, damage to his growing crop, and in his direct examination had testified that said crop consisted of both cotton and corn, and we don't see that defendant's question as to the location of the question as to crop whether within one hundred feet of the track location of or not- was incompetent. One ground of the crop. defence was, substantially, that injury to crops growing on the respondent's right of way could not sustain the action; and it seems to us to have been a very pertinent question, after appellant had testified that his crop had been injured, for respondent to ask whether said crop was within the right of way or not. Declarations of section-master. As to exception 2. It is true that a section-master is the representative of the company within the scope of his agency and duties, and what he says and does within that limit will generally bind the company; but the exclusion of the testimony referred to in this exception does not appear to have violated this rule. The section-master, as we understand, is charged with keeping the track in order for the safety of the trains; and the conversation here between the appellant and the section-master, proposed to be introduced, did not seem to have any reference to the track within the scope of the section-master's duties, to wit, as to its safety for the trains, etc. Propriety of nonsuit. Evidence of damages. This brings us to the order of nonsuit. A nonsuit is proper when there is a total failure of testimony as to one or more of the material allegations in the complaint, which, as we have often said, is a question for the judge who hears the case. If there be testimony as to all of the material allegations, the force and effect of which must be determined, the case must go to the jury; but if there be an absence of all evidence as to any one or more of such allegations, then a nonsuit must follow. Now, here the material allegations, and upon which the parties were at issue, were, that by a defective culvert, constructed by defendant upon plaintiff's land, water, which but for said road-bed would have flowed off naturally, accumulated, and, by overflowing plaintiff's land, had injured it and his growing crop in the sum of $75. Analyzed, these are the issues: (1) The character of the road-bed and culvert; (2) the accumulation of water in consequence, which otherwise would have flowed off; (3) overflowing and injuring appellant's land and crops, one or both; and (4) a pecuniary loss of some definite amount. Now, the order of nonsuit does not state distinctly which of these allegations was without testimony. It simply states, in general terms, that defendant having moved for a nonsuit on the ground of failure of proof on the part of the plaintiff, and it appearing to the court the motion should be granted, it is ordered, etc. The plaintiff (appellant) was the only witness examined, and we find in his examination some testimony as to all of these issues except the last. He gave it as his opinion that the culvert was insufficient to carry off the water, and he described the culvert. He stated that the water had backed, and covered some of the land, had seeped through, and injured his crop on the other side of the track. This, perhaps, would have been enough to carry the case to the jury as to these matters; and, if there had been any testimony as to the last allegation, then the case no doubt would have gone to the jury. The last allegation was a pecuniary loss of some definite amount, and to entitle it to go to the jury there should have been some testimony directed to such loss, and by means of which the jury could estimate it in dollars and cents. True, the appellant said, generally, his land and crops had been injured; but as to the extent of the injury in money no evidence was furnished, and if the case had gone to the jury in the absence of such testimony, we do not see how a verdict could have been rendered as to that question. The appellant stated the usual price of corn and of cotton, and the probable production of his surrounding lands not |