{
  "id": 5398807,
  "name": "Ada L. Ferrell, Appellee, v. Southern Illinois Railway & Power Company, Appellant",
  "name_abbreviation": "Ferrell v. Southern Illinois Railway & Power Co.",
  "decision_date": "1917-04-13",
  "docket_number": "",
  "first_page": "169",
  "last_page": "171",
  "citations": [
    {
      "type": "official",
      "cite": "206 Ill. App. 169"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 5384,
    "ocr_confidence": 0.589,
    "sha256": "8ba8ca3f235aef96f2f2da20219431c378640ef6d54b32d3e52bf9238e6ee0b0",
    "simhash": "1:a011e561d8a7465c",
    "word_count": 878
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  "last_updated": "2023-07-14T14:33:48.967362+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Ada L. Ferrell, Appellee, v. Southern Illinois Railway & Power Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice McBride\ndelivered the opinion of the court.\n7. Railroads, \u00a7 325*\u2014when railroad has duty to provide culverts, ditches and drains. \"Where it becomes necessary for a railroad in the construction of its roadbed under a franchise from a city to raise the grade of a street of the city, and such change interferes with the surface drainage and diverts it from its usual and natural course, or obstructs the flow thereof to the injury of abutting property owners, such railroad has the duty to provide and maintain such culverts, ditches and drains as will perinit the free passage of surface water in the usual and natural course of surface drainage.\n8. Railroads, \u00a7 349*\u2014when effect of construction of sidewalk upon drainage is question for jury. The effect of the construction of a certain sidewalk by plaintiff in front of her premises above the surface of her lot subsequent to the construction of defendant\u2019s railroad upon the drainage of said premises, held to be for the jury, in an action to recover damages for the claimed obstruction of such drainage by defendant\u2019s railroad.\n9. Railroads, \u00a7 315*\u2014what is not excuse for negligence of railroad in raising grade of street and obstructing drainage. The fact that a certain fill of land south of plaintiff\u2019s premises obstructed the free passage of surface water from such premises which was cast upon them by reason of defendant having raised the grade of the street in the construction of its railroad, and which would but for such raising of the grade have passed to the east of such premises in its usual and natural course, held no excuse for defendant\u2019s negligence in maintaining such grade without providing for the free-passage of surface water and no release of defendant\u2019s liability in consequence of such negligence.\n10. Instructions, \u00a7 151*\u2014when refusal proper. It is not error to refuse instructions covered by those already given.\n11. Instructions, \u00a7 126 \u2014when refusal proper because abstract in form. It is not error to refuse an abstract instruction which is inapplicable to the case.",
        "type": "majority",
        "author": "Mr. Presiding Justice McBride"
      }
    ],
    "attorneys": [
      "Whitley & Combe, for appellant; Marsh, Stilwell & Finney, of counsel.",
      "W. C. Kane, for appellee."
    ],
    "corrections": "",
    "head_matter": "Ada L. Ferrell, Appellee, v. Southern Illinois Railway & Power Company, Appellant.\n(Not to be reported in full.)\nAppeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.\nAffirmed.\nOpinion filed April 13, 1917.\nStatement of the Case.\nAction by Ada L. Ferrell, plaintiff, against the Southern Dlinois Railway & Power Company, defendant, to recover damages for the obstruction to the drainage of plaintiff\u2019s premises by reason of the construction of defendant\u2019s railroad. From a judgment for plaintiff for $300, defendant appeals.\nWhitley & Combe, for appellant; Marsh, Stilwell & Finney, of counsel.\nW. C. Kane, for appellee.\nAbstract of the Decision.\n1. Pleading, \u00a7 232 \u2014when amendment of declaration is not erroneous. A motion for leave to amend a declaration rests in the sound discretion of the court, and the court\u2019s ruling thereon is not assignable as error unless the discretion has been abused.\n2. Continuance, \u00a7 31*\u2014when granting of motion for is proper. A motion for a continuance rests in the sound discretion of the court, and the court\u2019s ruling thereon is not assignable as error unless the discretion has been abused.\n3. Pleading, \u00a7 260*\u2014when amendment is germane to original declaration. Where the original declaration charged that the defendant had by the construction of its railroad prevented the escape of waters naturally coming upon plaintiff\u2019s premises, and an amendment added the charge of diverting surface water out of the course of natural drainage and casting it upon plaintiff\u2019s premises, held that such amendment was germane to the original declaration, and the charges of negligence remained the same; the amendment added merely an additional element of injury.\n4. Continuance, \u00a7 7*\u2014when surprise may not he claimed hy motion to amend declaration. Where defendant offered no objection to the admission of certain evidence on the part of the plaintiff as not admissible under the pleadings, held that defendant could not claim surprise by plaintiff\u2019s motion to amend the declaration by adding an additional charge as an element of injury from defendant\u2019s negligence charged in the declaration so as to authorize a continuance, especially when such motion was not made until plaintiff\u2019s evidence was nearly all in.\n5. Continuance, \u00a7 51*\u2014when affidavit for on ground of absence of witness is insufficient. Where, in support of defendant\u2019s motion for a continuance, defendant filed affidavit that a certain absent party would testify to certain facts to which substantially a witness on the part of defendant testified, and as to which many other witnesses on the part of defendant who appeared to have had opportunity of knowing such facts were not interrogated, held that no abuse of discretion was shown in denying such motion.\n6. Railroads, \u00a7 350*\u2014when evidence sufficient to show negligence in obstruction of drainage. Evidence held to sustain the charge of defendant railroad\u2019s negligence in obstructing the drainage of plaintiff\u2019s premises by the construction of an embankment in a street above grade.\nSee Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic aiui section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0169-01",
  "first_page_order": 213,
  "last_page_order": 215
}