
    [No. 1452.
    Decided November 17, 1894.]
    Anna Rieckhoff et al., Respondents v. Northern Pacific, Yakima and Kittitas Irrigation Company, Appellant.
    
    ACTION FOR. DAMAGES — PEEADING AND PROOF — INSTRUCTIONS.
    In an action in which special damages are alleged in a certain sum, and the only specific proof on the subject puts the damages at a less sum, it is error to refuse defendant’s request to charge the jury that no greater sum than the amount given in proof could be assessed as damages.
    
      Appeal from Superior Court, Yakima County.
    
    
      Reavis & Milroy and Crowley & Sullivan, for appellant.
   The opinion of the court was delivered by

Stiles, J.

Respondents brought their action for damages resulting from the negligent construction of a water ditch and the consequent flooding of their lands adjoining. Special damages were alleged as follows : By reason of an overflow in November, 1892, destruction of potato crop, $30; by reason of overflow April 16, 1893, destruction of fence, $>15 ; permanent inj ury to land, $400 ; and by reason of washouts prior to April 16, 1893, permanent injury to land, $100.

Plaintiff John Rieckhoff was the only witness who attempted to name the damages in figures. Under examination he was asked:

Q. “ Now what do you put the damage in April, ’93 at, Mr. Rieckhoff, this last April ?
A. Made by that break?
Q. Yes.
A. Well, it is about $100, anyway.”

Under the allegations of the complaint this reduction of damage for the April, 1893, washout from $400 for injury to land and $15 for fence, to $100 in all, left the total recovery submissible to the jury only $230. Appellant asked the court to charge the jury that no more than $245 could be assessed, but the request was refused and the verdict was for $400. Motion to set aside the verdict overruled and judgment for the sum found.

This was error, and appellant is entitled to a new trial. Respondents make no appearance. Judgment reversed and cause remanded for a new trial.

Dunbar, C. J., and Hoyt and Scott, JJ., concur.  