Court of Appeals of Kentucky, 1913

Chesapeake & Ohio Railway Co. v. Robbins

Chesapeake & Ohio Railway Co. v. Robbins
Court of Appeals of Kentucky · Decided June 20, 1913 · Settle
154 Ky. 581; 157 S.W. 906; 1913 Ky. LEXIS 95

Chesapeake & Ohio Railway Co. v. Robbins

Opinion of the Court

Extension oe the Opinion by

Judge Settle —

-Reversing on Cross Appeal.

In the opinion handed down in this case we inadvertently overlooked and omitted to pass on, the' question raised by appellee’s cross appeal. It appears from the record that after the principle issues had been completed, appellee filed an amended petition, wherein it was, in substance, alleged that at the time of the first overflow of her lots and houses by the alleged obstruction of the waters of Salt Lick and1 Mud Lick Creeks from the abutments, piers and embankments, connected with apellant’s bridges over those streams, she owned and had in one of the houses household goods of value, which were subjected to overflow and thereby damaged to the amount of $205. For some reason not stated in the record, the circuit court sustained a demurrer to the amended petition, to which appellee, at the time excepted, and the cross appeal presents for review this ruling. We think the court erred in sustaining the demurer. The claim for damages arising out of the overflow of appellee’s personal property was properly pleaded and its consequent injury sufficiently alleged. There was no question of *582limitation, and appellee’s right to a recovery of damages for the injury to the personal property, is apparently as' valid as was her claim to damages for the injuries sustained, from the same cause, and1 at the same time, to her real estate. If she had a right of action for the latter she has for the former, on the grounds stated in the original opinion.' At any rate she should have been allowed an' opportunity to establish her right to the damages to the personal property claimed. So while the judgment, from which the main or original appeal was prosecuted, was properly affirmed, the judgment sustaining the demurrer to the amended petition must be and is reversed on the cross appeal, and remanded for a trial as to the question of damages claimed to the personal property.

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