Morrison v. Cornelius

• Decision Date: 31 January 1869
• Citation: Morrison v. Cornelius, 63 N.C. 346 (N.C. 1869)
• Court: North Carolina Supreme Court
• Parties: W. C. MORRISON v. B. F. CORNELIUS and others.

63 N.C. 346

W. C. MORRISON

v.B. F. CORNELIUS and others.

Supreme Court of North Carolina.

January Term, 1869.

Where the defendants, who were engaged in the manufacture of saltpetre up to the 14th of April 1865, at the discontinuance of their operations, left some of the liquid of which saltpetre is made, in troughs and hogsheads, covered with boards, and enclosed by a sufficient fence, and three months thereafter the plaintiff's cattle wandered into the enclosure, drank of the liquid, and died from the effects thereof, Held, that the question of negligence on the part of the defendants, did not arise.

If a party injured have contributed to the injury, he cannot recover damages on account of it.

The act of May 26th 1864, by which persons “ while engaged in the manufacture of saltpetre” are required “to enclose their works with a good and lawful fence,” under penalty of double the value of all cattle that are destroyed by the liquid saltpetre, does not apply after the operations are discontinued.

Where both parties to a case appeal, the Clerks of the Superior Courts should make out two transcripts, the double appeal constituting in the Supreme Court two cases.

( Laws v. N. C. R. R. Co., 7 Jon. 468; Devereux v. Burgwyn, 11 Ire. 490, cited and approved.)

CASE, tried before Mitchell, J., at Fall Term 1868 of the Superior Court of IREDELL.

The plaintiff declared in two counts?? In one, that the defendants knowingly left exposed a poisonous substance at a place about which plaintiff's cattle and other cattle were used to range; and that the defendants failed to debar cattle from it by a sufficient fence or other barrier, and that plaintiff's cattle partook of the poisonous substance, and died. In this count he claimed the value of the cattle in damages.

In the second count he demanded double damages, for that the defendants did not guard said poisonous substance against the access of the cattle, as required by the act entitled, “An act to protect cattle, by a good and lawful fence,” ratified May 26th 1864.

The defendants, as co-partners, were engaged in the manufacture of saltpetre on the lands of the defendant B. F. Cornelius, near the land of the plaintiff, for six months immediately preceding April 14th 1865. Upon the approach of Gen. Stoneman's army at that date, they discontinued the manufacture, and never afterwards resumed it. About two weeks after the discontinuance, the defendants Cornelius and Morris, removed to the house of the former the kettles and other apparatus used in the manufacture, except two troughs used in the process of evaporation, and two hogsheads, open at top and about four feet high, which were left on the lot, and remained there until after the cattle died. The hogsheads and troughs contained a liquid, of which saltpetre is made by evaporation, and some of this liquid was found therein when the cattle were discovered dead. The quantity in the hogsheads, and its accessibility to cattle, were points in controversy, upon which both sides introduced evidence. Testimony was offered to show that when the defendants removed the kettles, they covered the troughs; and on the other hand, that when the dead cattle were found, the boards had been displaced, and very little of the liquid was remaining.

The cattle, seven in number, were found dead on the 24th of July ensuing, and all, except one which was forty yards distant, were found within the enclosure and within a few yards of the hogsheads and troughs.

The evidence showed that the fence around the lot was not generally five feet high, but had successfully excluded cattle until the abandonment of the work on the 14th of April. There was conflicting testimony as to the condition of the fence from that time until the death of the cattle. Evidence of physicians and others, was given as to the nature and poisonous effects of the liquid in the hogsheads and troughs.

His Honor charged the jury that the plaintiff was not entitled to recover double damages for the loss of his cattle, under the act of May 26th, 1864, but that, if they found that the liquid left by the defendants in the troughs and hogsheads was poisonous and fatal to cattle, that the defendants knew or had good reason to suppose that it was, that the cattle had access to it from the want of a fence or barriers that would ordinarily exclude cattle, and that the cattle had drunk the poisonous liqnid, and had died from the effects thereof, the plaintiff was entitled to recover damages to the value of the cattle.

The counsel for the plaintiff, and for the defendants, each excepted; Exceptions overruled; Verdict and judgment for the plaintiff accordingly. Appeals prayed and allowed for both parties.

Bragg, for the plaintiff .

W. P. Caldwell, for the defendants .

DICK, J.

The maxim, sic utere tuo ut alienum non laedas, has existed in the law for centuries. It has justly been regarded as one of the golden rules of jurisprudence; but the difficulty of its application to particular cases, has given rise to much discussion and numerous adjudications, both in this country and in England. We have examined with care some of the leading American and English authorities, and in the midst of various conflicting views, we think they establish some general uniform rules on the subject. We shall only refer to those which are applicable to the case before us.

In all cases where a person, in the lawful use of his own property, causes injury to another, the party injured, before he can recover damages at law, must show that he has exercised proper care, and is free from blame in regard to the matter. If it appears that the party injured has, by any act of omission or commission on his part, contributed to the injury complained of, it is generally damnum absque injuria. There are some exceptional cases to this general rule, but they are founded upon particular circumstances. Lynch v. Nurdin, 1 Ad. & E. (N. S.) 422. Birge v. Gardner, 19 Conn. 507.

If a person enters upon the lands of another to use the premises for his own benefit, under a license given by the owner, or in the enjoyment of a privilege allowed by law, he takes such benefit with all the risks and perils attendant upon it; and if he has full opportunity of inspecting the premises, and there is no concealed cause of mischief, and any existing source of danger is apparent, the owner is in no way responsible for any injury which such license may accidentally sustain. Indemaur v. Dames, 1 C. C. P. 272; Hunsell v. Smyth, 97 E. C. L. R. 271; Butterfield v. Forrester, 11 East, 60; Bush v. Brainard, 1 Cowen 78.

It is also well settled that an owner of land may on his own...