¶1This was an action for damages sustained to the personal and real property of plaintiff — plaintiff in error — through the tortious acts of the servants of defendants in error, in blasting out a road bed for a certain railroad. A trial to the jury resulted in a verdict and judgment for defendants in error.
¶2Original liability on the part of defendants in error was admitted. The only defense urged below was that defendants in error had offered to send workmen and materials, and repair the injuries to plaintiff’s buildings, which constituted in great part the injuries complained of. Plaintiff declined to accept this offer. This offer was manifestly not a defense to the cause of action admittedly existing in favor of plaintiff.
¶3This question, insufficiency of the evidence to sustain the judgment, was saved to plaintiff by an exception to the judgment.
¶4.The judgment will be reversed.
¶5Reversed.