#### JACOB CARPENTER v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY COMPANY.

(Filed 13 May, 1913.)

Evidence — Collateral Matters — Appeal and Error.

In an action to recover damages of a .railroad company for ponding water upon plaintiff’s lands, to its injury, by filling up the original bed of a stream and diverting the water thereof into an inadequate channel, and the evidence tends to show an actionable wrong, testimony is properly excluded that lands of the same character as that of'plaintiff some distance below and above his location had been turned out before the construction of the railroad and its cultivation no longer attempted, as being more 'likely to distract than aid the jury in their deliberation upon the issues involved in the ease.

Appeal by defendant from Adams, J., at August Term, 1912, of Rutherford.

Civil action to recover damages for wrongfully ponding water on plaintiff’s land.

There was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.

McBrayer & McBrayer and S. Gallert for plaintiff.

Quinn, Hamrick & McBorie and J. J. McLaughlin for defendant.

Hoke, J.

There was allegation with evidence on part of plaintiff tending to show that the defendant company, in constructing its roadbed along French Broad River, just below plaintiff’s lands, had filled up the original bed of the stream* thereby diverting the water into an artificial -channel, inadequate for the flow of the stream, causing the waters of same to pond back upon and sob and injure plaintiff’s lands, to his great damage, etc.

There was evidence on the part of defendant in denial of this view, but the issue is almost' exclusively one of fact, and, the jury having accepted plaintiff’s version of the matter, an actionable wrong has been clearly established. It was chiefly urged for error that the court sustained an exception to questions proposed by defendant to two or more of the witnesses *278and to tbe effect that certain lands on tbe river, some distance below and above that of plaintiff, and of same character, bad been turned out before tbe construction of tbe railroad, and its cultivation no longer attempted. Tberó are. so many reasons wbicb might have led to this course on the part of the owners of these other* tracts that tbe proposed questions, in our opinion, were properly excluded as tending to introduce issues entirely foreign to tbe inquiry and more likely to distract than to aid tbe jury in their deliberations. Chaffin v. Manufacturing Co., 135 N. C., 102; Warren v. Makely, 85 N. C., 12.

After careful examination of tbe record, we find no reason for disturbing tbe results of tbe trial, and tbe judgment in plaintiff’s favor is

Affirmed.