Downs v. City of High Point ( 1894 )

The first issue submitted involved the question whether the defendant negligently failed to keep the ditch in good condition, or, in other words, carelessly suffered a public nuisance to be created by want of care in attending to it. The additional issue passed upon was as follows: "If so, what damage has the plaintiff sustained thereby, if any, up to the date of his demand, 14 July, 1892?" The affirmative finding, that the nuisance was caused by the defendant's want of care, and the assessment of the damage sustained by the plaintiff "thereby" was necessarily an ascertainment of the damage due for the private nuisance suffered peculiarly by the plaintiff. In order to enable the jury to comprehend that such was the end in view in passing upon the inquiries, the judge told them the damage must be assessed, if at all, for an injury differing in kind, not simply in degree, from that suffered by the public generally. The defendant tendered the issue, "Was the sickness of the plaintiff and that of his family complained of, the result of the condition of the ditch alone?" Precisely the same inquiry was answered when the jury found the amount of damage resulting peculiarly to plaintiff and his family from neglect to keep the ditch in good condition ("thereby"). That issue was not a simple inquiry as to damage, but was so framed that no damage could be assessed in response to it except such as arose from some injury peculiar to the plaintiff. There was no danger, therefore, that the defendant would be mulcted for any injury done by the fifth emanating from the hog-pen mentioned by the witness. In fact, the best evidence that the court did not abuse its discretionary power in framing issues is found in the fact that the very legal question suggested by the issue tendered was raised by the prayer for instruction offered. If the defendant's counsel had the (186) opportunity to present such views of the law, arising out of the evidence, as were pertinent in support of their contention, they have not been deprived of any legal right. McAdoo v. R. R., 105 N.C. 140;Emry v. R. R., 102 N.C. 209.

This case differs from that of Denmark v. R. R., 107 N.C. 185, in that here the inquiry involves the question of proximate cause as well as damage, while in Denmark's case the jury were not required to pass upon or find anything but the amount of damage without ascertaining on what account. The addition to the instruction asked was in strict accord with the very principle for which the defendant contended. The jury were told in effect that unless it was clearly established that the injury would not have resulted from any other cause than the odors arising from the nuisance of the ditch, and that if the injury was directly traceable to the nuisance, they would assess no damage at all. We think that there was no error in refusing to instruct the jury upon the evidence that plaintiff could not recover. The instruction given was warranted by the evidence, and embodied the principle laid down by leading textwriters. Wood Nuisances, secs. 561-574.

There was no error in the ruling of the judge refusing to submit the issue, nor in the charge given as a substitute for that asked.

Affirmed.

Cited: Mfg. Co. v. R. R., 117 N.C. 587; Reyburn v. Sawyer, 135 N.C. 337;Hull v. Roxboro, 142 N.C. 460; Staton v. R. R., 147 N.C. 436;Little v. Lenoir, 151 N.C. 418; Hines v. Rocky Mount, 162 N.C. 414,416; Petree v. Savage, 171 N.C. 439.

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