#### J. B. PENNINGTON v. TOWN OF TARBORO.

(Filed 20 September, 1922.)

1. Municipal Corporations — Cities and Towns — Surface Water — Waters—Negligence — Drains—Damages.

It is an actionable nuisance for a city or town, after receiving sufficient actual or implied notice, to permit its sewer or drain to fill up 'with debris and other obstructions so as to repeatedly cause the surface or rain water to flood the property of a resident owner, upon the street, and thereby damage his property.

3. Appeal and Error — Instructions—Objections and Exceptions — Prayers for Instruction — Special Requests.

Where there is evidence of actionable negligence on the part of a city or town in permitting its drain, etc., to become successively stopped up so as to pond water upon the plaintiff’s property, after notice thereof had been given, an exception that the charge of the court was not sufficiently definite as to the time of the notice, and the damage thereafter resulting, is untenable, it being required of the defendant to have presented this question by an appropriate request for special instruction.

Appeal by defendant from Horton, J., at April Term, 1922, of Edgecombe.

Tbe action is to recover damages caused to plaintiff’s property by defendant in negligently permitting tbe city sewer or drains to fill up, thereby causing tbe surface waters in tbe city to flood tbe plaintiff’s property, and doing substantial damage to same. Denial of liability by defendant. Yerdict for plaintiff, assessing bis damages at $1,000.' Judgment on tbe verdict, and defendant excepted and appealed.

G. M. T. Fountain S Son for plaintiff.

Donnell Gilliam for defendant.

HoKe, J.

Plaintiff complained, and offered evidence tending to sbow, tbat in tbe summer of 1920 be was the proprietor of a building in the town of Tarboro, used by him for a garage and in tbe sale of automobile supplies, etc. Tbat during said period tbe town authorities bad negligently permitted tbe city sewer and drain below plaintiff’s property to fill up with debris and other obstructions, causing tbe surface or rain waters, three times during said summer, to flood plaintiff’s property and doing substantial injury both to tbe building and tbe supplies therein, amounting by plaintiff’s estimate and testimony to $1,600 or $1,700.

Tbe evidence further tended to show tbat after tbe first flooding plaintiff personally called tbe attention of tbe town authorities to tbe conditions presented, but they failed to correct tbe trouble, and there was a second and a third flooding, tbe last being much tbe worst, and *72doing extensive injuries. Upon these facts, which the jury have accepted and established by their verdict, it appears that defendant has been guilty of negligence constituting a nuisance and causing damage to plaintiff’s property, and for which the town has been properly held liable. Hines v. Rocky Mount, 162 N. C., 409; Donnell v. Greensboro, 164 N. C., 330; Watson v. New Milford, 72 Conn., 561; Hines v. Nevada, 150 Iowa, 620; Nevins v. Fitchburg, 174 Mass., 545; 9 R. C. L., pp. 672-673.

It is not seriously contended by defendant that the town is not liable for the second and third flooding, and the damages incident thereto, but it is insisted that there is prejudicial error in the charge of the court on the issue as to the amount of damages suffered, the objection being that all damages incident to the first.flooding should have been eliminated for want of notice or knowledge on the part of the authorities of the faulty condition of the sewer.

While the charge is not as full or definite on the issue as could be desired, when taken in connection with his Honor’s statement of the respective contentions of the parties, and considered as a whole, the jury were instructed in effect that the plaintiff should be allowed damages for the impaired value of his property or the pecuniary loss incident to defendant’s wrong. This is the correct general rule applicable to the case. It was not ascertained or necessarily established by the testimony that the town was not sufficiently informed of the condition of the sewer at the time of the first flooding to import liability. And if defendant thought there were phases of the evidence permitting such an inference and limiting the damages in that respect, he should have presented the question by a special prayer for instructions. Hill v. R. R., 180 N. C., 490; Buchanan v. Furnace Co., 178 N. C., 643.

In this last case the position is stated as follows: “Exceptions that the instructions of the court to the jury were not sufficiently full and explicit will not be considered on appeal. If the appellant desired any particular phase of the case to be presented to the jury, he should have requested a special instruction presenting it.”

We find no reversible error in the record, and the judgment for plaintiff is affirmed.

No error.