Downs v. City Of High Point

• Decision Date: 20 November 1894
• Citation: 115 N.C. 182,20 S.E. 385
• Parties: DOWNS . v. CITY OF HIGH POINT.
• Court: North Carolina Supreme Court

20 S.E. 385

115 N.C. 182

DOWNS .

v.CITY OF HIGH POINT.

Supreme Court of North Carolina.

Nov. 20, 1894.

Action against City — Maintenance of Public Nuisance—Recovery of Damages.

1. In an action against a city for damages for the maintenance of a public nuisance, which caused sickness in plaintiff's family, the court submitted to the jury the issues whether the city carelessly suffered a public nuisance to be created by failure to keep a ditch in repair, and, if so, what damage has the plaintiff sustained "thereby, " and also instructed that to entitle plaintiff to recover, the sickness must have been directly caused by the condition of the ditch. Held, that it was proper to refuse to submit, at defendant's request, the issue whether the sickness was "the result of the condition of the ditch alone, " as such issue was necessarily embodied in those given.

2. Damages may be recovered from a city for sickness in plaintiff's family caused by a drain maintained by the city, amounting to a public nuisance.

Appeal from superior court, Guilford county; Brown, Judge.

Action by J. R. Downs against the city of High Point. There was a judgment for plaintiff, and defendant appeals. Affirmed.

L. M. Scott and Dillard & King, for appellant.

Jas. E. Boyd, for appellee.

AVERY, J. 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, July 14, 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 that 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...