Hartford Deposit Co. v. Calkins , 1898 Ill. App. LEXIS 1088 ( 1899 )

Mr. Justice Freeman,

after making the foregoing statement, delivered the opinion of the court.

It is urged, as ground for reversal of the judgment appealed from, that the court erred in giving to the jury the following instruction:

“ The jury are instructed that a person can in no case recover for damages to his business or property which he permits to go on, knowing that it is going on, and without making every reasonable effort and taking active steps to prevent it or have it stopped. If you believe from the evidence that plaintiffs knew that their premises were being damaged, and that they permitted the damage to continue, when by their, own efforts the damage might have been stopped or prevented, then the defendants are not liable for the damage so caused, and plaintiffs can not recover in this suit for any such damage, unless the jury further believe from the evidence that the defendant directed the plaintiffs not to do so.”

The last clause, “ unless the jury believe from the evidence that the defendants directed the plaintiffs not to do so,” was added by the court in modification of the instruction, as requested by appellees’ counsel.

The instruction as presented to the court, and before its modification, stated, we think, substantially, the correct rule of law, and was applicable to the case in view of the evidence.

The law required that appellees should make reasonable efforts at least to protect themselves from unnecessary injury, and they can not recover damages occasioned by their own neglect. In Hamilton v. McPherson, 28 N. Y. 72-76, it is said by Judge Selden:

“ The law for wise reasons imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness allows the damages to-be unnecessarily enhanced, the increased loss justly falls upon him.”

It is said in Hogle v. N. Y. C. & H. R. R. R. Co., 28 Hun, 363, “if it were in the plaintiff’s power, by reasonable efforts, to prevent the increase of the wrong, he should use that power.” To the same effect are the cases, Miller v. Mariners’ Church, 7 Me. 51-55; Mather v. Butler Co., 28 Ia. 253-259; Town Co. v. Leonard, 46 Kans. 354-358.

The modification complained of is, we think, erroneous. We find no evidence tending to show that the “ defendant directed the plaintiffs not to ” make any effort to prevent the damages alleged to have been caused to the latter’s premises generally by smoke and dust and cold weather. The testimony of one of the appellees is that the latter did not make any effort to shut off the exposed rooms from the rest of the building, because they were told they could not do so by the contractor or a foreman. But the witness is not positive that the contractor did so tell him, and there is no evidence that either the contractor or any foreman had, or pretended to have, authority to so represent the appellant. The contractor testifies that he had no foreman, and that the work was all sublet. JSio reason appeared why the rooms in question could not readily have been shut off from the rest of the house. Such statement, if made, could not justify appellees in neglecting their plain duty of. protecting themselves, so far as they reasonably could, from unnecessary damage.

The contractor was originally a party defendant, but appellees dismissed as to him at the close of the evidence.

The erroneous instruction, however, could not, we think, have been prejudicial as to any part of the verdict, except the item of $1,000 claimed by appellees for the alleged damages to the rest of their building from smoke, noise, dust and dampness, and for the expense of additional coal and help to keep‘the house comfortable.

If, therefore, the appellees shall within ten days file in this court a remittitur for $1,000, the judgment of the Circuit Court will be affirmed for the balance. Otherwise it will be reversed and the cause remanded.