
    Chesapeake & Ohio Railway Company v. Childers.
    (Decided May 10, 1927.)
    Appeal from Pike Circuit Court.
    1. Appeal and Error. — Opinion on former appeal, approving instruction, is law of -case, so that same instruction, though erroneous, was properly given at second trial, where there was no difference-in character of evidence and no change in issues.
    
      Z. Damages. — >$800 held not excessive for causing deposit of earth,, stone, and debris to depth of 3 feet to. be placed over surface of land 100 feet wide and 1510 feet long by flood, due to closing of culvert and collapse of fill constructed by railroad, where price-of removal was not less than 75 cents per cubic yard.
    BROWNING & REED and KIRK, KIRK & WELLS for appellant.
    J. J. MOORE and A. F. CHILDERS for appellee.
   Opinion op the Court by

Judge McCandless—

Affirming.

Plaintiff, Albert Childers, sued the Chesapeake & Ohio Eailroad Company for temporary injury to certain dwelling houses and lots by reason of a flood carrying dirt and debris on the lots and otherwise injuring the houses; it being alleged that this was caused by the closing of. a culvert and the collapse of a fill constructed by defendant across a drain above the property. From a judgment for $800, the railroad company appeals.

A former judgment herein in favor of Childers for $1,000 was reversed by this court on the sole ground that the verdict of the jury was excessive. See C. & O. R. R. Co. v. Childers, 214 Ky. 361, 283 S. W. 113, in wfliich the facts are fully set out. On the second trial, the evidence introduced was of the same character as that introduced in the first trial, but the plaintiff’s wfitnesses went into more detail in describing and estimating the amount of earth, debris, and stone deposited on the land in question; the same instructions being given as on the first trial, that on the measure of damages being in these words:

“If the jury shall find for the plaintiff, they should allow him such a sum in damages as they may ■believe from the evidence is a sufficient sum to restore plaintiff’s property to the condition it was in prior to the injury, so that the sum so found, if anything, does not exceed $2,500. ’ ’

Appellant contends that 'earth may have been deposited on the lots without damage to them; that in their present condition they may be as valuable as they were before the flood; and, if so, that there is no reason for the removal of such earth; that therefore the measure of damage should be confined to a sum sufficient to restore the property substantially to the condition it was in prior to the injury, and that the above instruction was erroneous in this respect.

It is unnecessary to determine this question, as the former opinion is the law of the case, and in it the given instruction was approved. Appellant admits this in part, but argues that the wfitnesses on the second trial stressed the quantity of the earth and debris upon the premises more than they did in the first trial, and that this constituted such a change in the evidence as authorized a change in the instruction. We are unable to catch this distinction. There is no difference in the character of the evidence and no change in the issues; hence the instruction remains the law of the case, even though it may be erroneous in the matter mentioned.

It is strenuously insisted that, as the verdict is only 20 per cent, lower than the former verdict, which was set aside as being excessive, this verdict should also be set aside on the same grounds. It appears that plaintiff’s evidence on this point was of the same generál nature as that given in the first trial; and as to the damage to the houses is about the same as in the first trial but, as to the condition of the lots, it is much clearer and more emphatic. A number of witnesses state that earth, stone, and debris to the depth of 2y2 or 3 feet were deposited over a surface estimated as being 100' feet wide and 150 feet long. This would be from 1,000 to 1,500 cubic yards, and it is admitted that there is no place to which this earth can be removed within less than 1,000 feet of the premises, and no one claims that it can be removed for less than 75 cents per cubic yard. True, appellant’s witnesses fix the amount of the deposit at much less but this was a question for the jury to determine, and, when the damage to the house is considered, it cannot be said that the verdict is so excessive as to strike one at first blush as being the result of passion or prejudice.

Wherefore the judgment is affirmed.  