Correll v. City of Cedar Rapids , 110 Iowa 333 ( 1900 )

.Ladd, J.

1 On the measure of damages for causing a-, portion of the lots to be washed away, the court told the jury that, “if you find that plaintiff is entitled to recover-anything on the first count of her petition, you are instructed that the measure of her damages would be the differ-ence in the value of her said premises as they were just before they were injured by the acts of the-defendant in removing said dirt and increasing the flow of water in said ditch, if you so find, and what they were-worth after that portion of said lots was washed away which, would not have washed away had the defendant not performed said acts.” The particular vice of this instruction,, condemned in Podhaisky v. City of Cedar Papids, 106 Iowa, 543, was obviated by the sixth paragraph, advising that “the defendant would be liable for the injury to plaintiff’s, premises caused by said acts, and for no more.” Besides, there had been no improvements, as in that case, unless dumping garbage on the lots be construed as such, and the only evidence on the measure of damages related to their value immediately before and after the portion had been washed out. The plaintiff’s husband testified: “The place-was worth eight hundred dollars before the washing out, in 1892. It was worth three hundred dollars after the washing.” The purpose to limit recovery to damages resulting-from the acts of the defendant is manifest, and the jury could not have misunderstood the charge.

2 II. The court permitted the jury to take into consideration the contamination of'the waters of the well by noxious, odors in fixing the damages to be allowed, and it is said this was not included in the averments of the petition. It is. there stated the acts of defendant resulted in causing “noxious exhalations and odors to pervade said premises, greatly interfering with the plaintiff’s comfortable-, and safe enjoyment of the same,” and also decreasing the rental value thereof. Certainly the well, with its. waters, was a part of the premises, and pervading it, as. alleged, fairly within the allegation set out.

3 III. The evidence tended to show that the plaintiff had caused large quantities of garbage and refuse'to be dumped on her lots, and that from this, at times, were emitted offensive odors. The defendant requested that the jury be told that if the “plaintiff, either by herself or by her agent, added to such offensive or noxious odors or gases, by depositing or throwing offensive matter into said ditch or E avenue, or by permitting other offensive matter to be deposited on the premises in controversy, from which offensive odors or gases came, resulting in reducing the rental valuó of plaintiff’s premises,” she could not recover on the second count of the petition. The instruction was properly refused. If the plaintiff maintained a nuisance on her premises, that furnished no excuse to the defendant for maintaining another on the public streets. The one was independent of the other, resulting from different acts. In such a case, the doctrine of contributory negligence has no application. Randolf v. Town of Bloomfield, 77 Iowa, 50, The court did no more in Cassady v. Cavenor, 37 Iowa, 301, than apply the maxim that he who comes into a court of equity must do so with clean hands. Whether the jury should have been told that if the plaintiff threw dead fowls in the ditch, and thereby contributed to the creation of the nuisance complained of, she could not recover, and the court erred in stating the contrary in the ninth instruction, we need not determine; for, in answer to the second special interrogatory, they especially found that neither plaintiff nor her agent had deposited in the said ditch “any dead cllickens or other offensive matter which would emit odors.”

4 IV. To a special interrogatory inquiring whether offensive odors were emitted from the garbage and refuse dumped on plaintiff’s lot, the jury answered, “We don’t know.” It is asserted that the. defendant was entitled to a new trial because of this failure to respond categorically. The inquiry, however, does not call for an ultimate fact. Without any finding of the kind, the verdict might have been reached. As said in Read v. Insurance Co., 103 Iowa, 319: “The fact'to be found must be one inhering in, and necessary to determine in arriving at, the general verdict.” As it would not have been error had the court, refused to submit the interrogatory, an answer was not essential. Garretty v. Brazell, 34 Iowa, 104.

5 V. There was evidence that collateral ditches were turned into the Vinton ditch, and of the removal of land bv the city within five years prior to the beginning of the action. "Whether the particular injuries complained of resulted therefrom was a question for the jury to determine. — Affirmed.

Granger, O. J., not.sitting.