Noyes v. Shepherd , 30 Me. 173 ( 1849 )

Shepuev, C. J.

■— The rules of law applicable to cases of injury, occasioned by the lawful acts of one person to the property of another, appear to be quite well established.

A person is required so to conduct in the exercise of his own rights and in the use of his own property, as not to do ■injury by his misconduct or by the want of ordinary care to •■the rights or property of another.

If the party, whose rights or property has been injured, has by the want of ordinary care contributed to occasion the injury, he will not be entitled to recover damages resulting from it. Bachelder v. Heagan, 18 Maine, 32; Kennard v. Burton, 25 Maine, 39; Barnard v. Poor, 21 Pick. 378; Howland v. Vincent, 10 Metc. 371; Clark v. Foot, 8 Johns. 421; Livingston v. Adams, 8 Cowen, 175; Gardner v. Heartt, 1 Denio, 466; Cook v. Champlain Transportation Co., ib. 91; Massey v. Goyner, 4 C. & P. 161; Proctor v. Harris, ib. 337.

Imminent danger expected from fire or flood, cannot excuse or exempt one from the use of ordinary care to prevent unnecessary injury to the property of others. What would under such circumstances be ordinary care must be determined by a jury; and it might not be the same care or an equal degree of caution, which would reasonably be expected, when there was little or no cause to apprehend immediate danger. However imminent the danger may be, a person must be held responsible for an injury to the property of another, occasioned by negligence of a less culpable character than such gross carelessness, as would reasonably authorize an inference, that it was done with an evil intent.

The first clause of the instructions appears to have required, that the jury should so find, to authorize a verdict for the plain tiff.

The second clause seems rather suited to guide the jurors in their deliberations respecting the effect of an erroneous judgment formed by the defendants, than to call their attention again to the degree of care, which the defendants were required to exercise. It does not appear to be suited to destroy entirely the effect of the former clause upon their minds and to leave them to conclude, that it was to have no influence. When it is perceived, that the instructions contained in the former clause were erroneous, and that they might and probably did have an influence upon the minds of the jurors, the plaintiff must be considered as aggrieved by the instructions.

The counsel for the defendants insists that the verdict should not be set aside, because the injury was occasioned in part at least by the misconduct or negligence of the plaintiff. No such question appears to have been presented to the consideration of the jury, whose province it was to decide upon it.

He further insists, that the pond had become a nuisance, and that the defendants might lawfully abate it. No such question appears to have been presented to the jury. It is not the duty of the Court to decide it.

He also insists, if the instructions were erroneous, that the verdict was right, and that it ought not to be set aside. The rule deducible from the cases cited to support it, is only applicable to cases, in which the Court is able to perceive, that under correct instructions a different verdict could not have been rightfully found. The present case does not come within the rule. Verdict set aside and new trial granted.