Stephens v. Gardner Creamery Co.
| Decision Date | 18 July 1899 |
| Citation | 9 Kan.App. 883,57 P. 1058 |
| Parties | STEPHENS v. GARDNER CREAMERY CO. |
| Court | Kansas Court of Appeals |
Error from district court, Johnson county; John T. Burris, Judge.
Action by Mary J. Stephens against the Gardner Creamery Company to recover damages to her residence occasioned by the construction and maintenance of a creamery in such manner as to constitute a private nuisance. There was a judgment for defendant, and plaintiff brings error. Reversed.
A Smith Devenney, for plaintiff in error.
Ogg & Scott, for defendant in error.
It is objected by the defendant in error that the court ought not to consider the merits of this case, because counsel for the plaintiff in error has not complied with the rules of the court regarding his brief, and, secondly, because of disrespectful language contained in the brief. It is true the brief does not conform to the requirements of the rules of the court in regard thereto, precisely, in several respects. There are, however, assignments of error in the brief which we are of the opinion, merit consideration at our hands. We find nothing in the language of counsel expressed in the brief that is so reprehensible as to justify us in refusing to consider his client’s case.
The first specification of error is, in substance, that there was positive evidence on the part of the plaintiff of the existence of noxious, unwholesome stenches, emanating from the defendant’s creamery, which penetrated and contaminated the plaintiff’s premises to such an extent as to render them almost uninhabitable; that the evidence of the defendant was of a negative character in regard thereto; and that the plaintiff was entitled of right to a verdict, and, as a consequence thereof, to a new trial upon her failure to obtain a verdict. We cannot sustain this contention. The evidence was conflicting, and not entirely of a negative character upon the side of the defendant. There was, in the language of the supreme court, some evidence to sustain the verdict. The situation presented by this specification was a good ground for contention in support of the motion for a new trial. Under the settled rule of this court and the supreme court, especially as there was some evidence to sustain the verdict, we have no jurisdiction to overrule the action of the trial court and award a new trial.
The second specification is that the trial court erred in admitting the evidence of witnesses in regard to the value of the plaintiff’s property before and after the setting up and maintenance of the nuisance who were not competent to testify thereto. This does not go the admissibility of the evidence itself, but to the qualification of the witness, and does not come directly within the rule of the court as to the quotation of the evidence in the assignments of error in the brief. As to three of these witnesses about whose testimony complaint is made, the objection is well taken. Their preliminary examination discloses, not that they are qualified to testify as to the value of property, but that they are totally disqualified. They say, themselves, they have no such knowledge, but can guess at it. The question of the depreciation of the value of the property was a very material question. The evidence admitted was important. We cannot say from the record,...
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Robinson v. Dale
...them. Hamm v. Gunn, 113 S. W. 304; Gavigan v. Refining Co., 186 Pa. 604, 40 Atl. 834; Munson v. Metz, 1 W. & W. § 245; Stephens v. Creamery Co., 9 Kan. App. 883,1 57 Pac. 1058. But while we think the testimony objected to was inadmissible, the action of the court in admitting it does not fu......