Nuisance—Noxious Gases—Action for Damages.
1. In a suit to recover for damages to plaintiff's property caused by the escape of noxious gases from defendant's factory, a charge that defendant must have so used his property as not to unlawfully injure his neighbors, and that if he so used it as to injure his neighbors, "in an unlawful and unreasonable manner, " he is liable, is objectionable as submitting to the jury a question of law.
2. Where one uses his land in the manufacture of fertilizers, and so, necessarily, in the manufacture of sulphuric acid, in the process of which noxious gases escape, by reason of which injury to his neighbors will either necessarily or probably ensue, he is liable, if such injury does result, even though he may have been reasonably careful.
3. Where plaintiff has sustained injury by the escape of noxious gases from defendant's factory and also injury from other causes, defendant is not relieved from liability for the injury which he has caused.
Appeal from common pleas circuit court of Berkeley county; James Aldrich, Judge.
Action by Thomas Frost to recover damages from the Berkeley Phosphate Company for injuries sustained by reason of noxious gases generated in defendant's mill. From a judgment for defendant, plaintiff appeals. Reversed.
The following are the charge of the judge, and the exceptions thereto:
"Mr. Foreman, and Gentlemen of the Jury: This is an action brought by Mr. Thomas Frost against the Berkeley Phosphate Company. You have heard the complaint read, which states the cause of action. You have heard the defendant's answer read, which is the answer to the allegations stated in the complaint. Those allegations and denials raise the issues which you are to pass upon. Among the issues that you will have to determine will be what damage, if any, has the plaintiff sustained by reason of the escape of gases, vapors, and those matters that are thrown off from the phosphate works, if they are thrown off; and in considering that you are to be guided by what we term the 'preponderance of the testimony.' The plaintiff comes in, and the burden of proof is upon him to sustain the case by the allegations that he has made. The defendant is not called upon to speak In his defense until the plaintiff has made out a case. When that is done, then the defendant introduces his testimony, and the jury then are controlled by what is termed the 'preponderance of the evidence.' You have heard counsel speak, in their arguments, of nuisances. In ordinary acceptation, we use the term 'nuisance' In referring to an offense that is indictable. To illustrate: Stopping the roads up, —digginga ditch across the road, —is a nuisance. When that is considered the term, as applied here, is restricted. A nuisance that affects injuriously one or more or few individuals may be a private nuisance, and that is based upon this doctrine. A man has the right to engage in any lawful occupation, or to use his premises in any proper and lawful industry; but, in the exercise of his rights, he must so use his property as not to unlawfully and unreasonably injure his neighbor's property. If he does so use his property in an unlawful and unreasonable manner as to injure his neighbor, then, as to that neighbor, that would be a nuisance, and for that nuisance that neighbor would have the right to bring action in the civil court, and demand compensation in the way of damages. The Berkeley Phosphate Company, it is alleged, is a corporation under the laws of this state. That is admitted. There is no allegation that the Berkeley Phosphate Company is engaged in an unlawful business in itself; that is, in the sense that they are engaged in a business which is wrong. But the plaintiff alleges that, while they are engaged in that lawful business, they are not so conducting their business as they should, and there comes the gist of the case. Is the Berkeley Phosphate Company so operating and conducting its business as, by the escape of these gases and vapors as alleged in this complaint, to injure, in an unreasonable and unlawful manner, Mr. Frost's property? Well, you heard the testimony, and I don't know if I can state the rule any plainer than I have. If the Berkeley Phosphate Company is allowing these acids and gases to escape, and they are actually injuring Mr. Frost's property, well, then, Mr. Frost would be entitled to compensation. But, to enable the plaintiff to recover, the injury must be a positive, direct injury, and the damage must be actual and substantial. Further, it must be the result of the nuisance; that is, the act of the phosphate company, as charged, and not the result of other artificial causes. If the injury is in part the result of vapors, as charged in the complaint, and in part the result of other causes, the verdict must be for the defendant, unless the testimony establishes that the injury would not have resulted except for the vapor charged as causing the alleged injury. The law only deals with real and substantial injuries, and such as arise from the wrongful use of property, and will not lend its aid to check one engaged in a lawful pursuit simply because his neighbor is annoyed, unless the use complained of —that is, the conduct of his neighbor—is both in violation of the neighbor's rights, and unreasonable and unlawful, as I have explained to you. Now, gentlemen, this action, in my opinion, is not one sounding in punitive damages, —that is, what we call 'smart money.' It is for compensation, —that which will make the plaintiff whole, if you find that he has sustained any injuries, I think that
about covers all that I desire to say to the jury.
"With all due respect to the counsel who made that argument, I think that, when you come down to private nuisances or private damages, that numbers have nothing to to with it. When one man injures his neighbor in an unlawful and unreasonable manner, as I have endeavored to explain to you, he must make him answer by compensating him for damages. You can't find a verdict for more than five thousand dollars, because that is the amount claimed, and your damages cannot come down below the 5th November, 1890. Damage that he has sustained will lead up to, and prior to November 5, 1890. Whatever you think was the damage he sustained at that time from injuries, if you find any or not, in destroying his trees, grasses, vines, or injuries to the property itself, you state in your verdict. If you find that the plaintiff has failed to make out his case by the preponderance of the testimony, or that these gases that escape from the defendant's factory, if that escape was not the approximate cause of the damage alleged to have been sustained, your verdict would be, out and out, for the defendant. Now, whatever may be your verdict, write it out in letters, not in figures. Gentlemen, by consent, this copy of the complaint goes to the jury."
Exceptions: "(1) Because the presiding judge charged as follows: 'A man has the right to engage in any lawful occupation, or to use his premises in any proper and lawful industry, but, in the exercise of his rights, he must so use his property as not to unlawfully and unreasonably injure his neighbor's property. If he does so use his property, in an unlawful and unreasonable manner, as to injure his neighbor, then as to that neighbor that would be a nuisance, and for that nuisance that neighbor would have the right to bring action in the civil court, and demand compensation in the way of damages. * * * The law * * * will not lend its aid to check one engaged in a lawful pursuit, simply because his neighbor is annoyed, unless the use complained of—that is, the conduct of his neighbor—is both in violation of the neighbor's rights, and unreasonable and unlawful, as I have explained to you. * * * When one man injures his neighbor in an unlawful and unreasonable manner, as I have endeavored to explain to you, he must make him answer by compensating him for damages.' In which his honor erred, it is submitted, by instructing the jury that a man would not have the right to bring such an action, and therefore could not recover damages, unless the defendant used his property in an unlawful and unreasonable manner, and so as to unlawfully and unreasonably injure his neighbor, whereas, it is submitted that it is the injury, by itself and in fact, not its unlawfulness and unreasonableness, nor the use of property in an unlawfuland unreasonable manner, which gives the right of action. (2) Because the presiding judge charged as follows: 'There is no allegation that the Berkeley Phosphate Company is engaged in an unlawful business, in itself, —that is, in the sense that they are engaged in a business which is wrong, —but the plaintiff alleges that, while they are engaged in that lawful business, they are not so conducting their business as they should, and there comes the gist of the case. Is the Berkeley Phosphate Company so operating and conducting its business as, by the escape of these gases and vapors as alleged in this complaint, to injure, in an unreasonable and unlawful manner, Mr. Frost's property? * * * The law * * * will not lend its aid to check one engaged in a lawful pursuit, simply because his neighbor is annoyed, unless the use complained of—that is, the conduct of his neighbor—is both in violation of the neighbor's rights, and unreasonable and unlawful, as I have explained to you. * * * When one man injures his neighbor in an unlawful and unreasonable manner, as I have endeavored to explain to you, he must make him answer by compensating him for damages.' In which his honor erred, it is submitted, (a) in stating to the jury that the plaintiff alleged that the defendants were engaged in a lawful business; (b) by instructing the jury that the gist of the case was whether the Berkeley Phosphate Company were so operating and...
