8 R.I. 246 | R.I. | 1865
One ground on which tbe motion for new trial is based is, tbat tbe instruction given to tbe jury assumes tbe
The charge to the jury is objected to on another ground — that it does not define correctly what constitutes a nuisance at common law. Upon this point, we are referred, for a correct definition of a nuisance, to 2 Selwyn’sNisi Prius, 299 ; Stephens’ Nisi Prius, pp. 2362, 2363. Selwyn says, “It may be sufficient to observe, that the erection of anything offensive so near to the house of another as to render it useless and unfit for habitation— as a swine-styc, limekiln, privy, smith’s forge or the like — is
The question in this regard, which the jury were to determine, was expressly stated to them to be, whether the erection of the stable and the keeping it for the use for which it was tenanted, created such smells and produced such noises as to render the house uncomfortable as a dwelling house and unfitted it for the proper purposes for which it was designedand they were directed, that if' it created -noises and bad smells to the. degree of rendering the house untenantable and uncomfortable, loaded it with vermin in that degree which has been described, they would say it was a nuisance. If these smells and noises were so great as to render life disagreeable to. the extent set forth in the declaration, theplaintiff might recover damages foranuisance.
. It is difficult to see how the instruction's here materially differ from the law as laid down'in the books above referred to. The instructions are, that the noises.and the smells, in order to become a nuisance, must .create an annoyance to- such an extent. as to
Another ground for a new trial is, tbat tbe verdict is against tbe weight of tbe evidence, as it is against tbe admissions of tbe plaintiff tbat tbe • stable was properly built, tbat it was properly kept, and in a location as fit as any in tbat part of tbe city.
These admissions, tbe defendant claims, ought to be sufficient to give him a verdict, and are inconsistent with a verdict for tbe plaintiff, and are impliedly an admission tbat there was no nuisance. It has been held, in other cases, tbat a stable in a town is not necessarily and per se, a nuisance; yet, if it is so built or so used as tbat it destroys tbe comfort of persons owning and occupying adjoining premises, creating such an annoyance as to render life uncomfortable, then it is none tbe less a nuisance, tbat it is well kept, carefully built, and as favorably located as tbe town will admit. Tbe question still is, does it in fact render life uncomfortable ? Tbe admissions imply no more than tbat if care in building and proper careful keeping would have prevented tbe injurious effects complained of, they would not have resulted from tbe use of this stable. But tbe claim of tbe plaintiff is, tbat they were insufficient to prevent it, and tbe question was stated, did this stable injuriously affect tbe plaintiff’s dwelling; to tbe extent alleged ?
Tbe plaintiff could claim damages only for tbe injury to tbe dwelling bouse occupied by himself. The attention of tbe jury was directed to this point alone. It was tbe actual damages only tbat tbe plaintiff bad a right to claim. Tbe statute expressly excluded all damages for any alleged outrage to tbe feelings of
Now, it is claimed in the argument, that if vindictive damages are excluded, and no recovery can be had for alleged outrage to the feelings of the party, there is nothing remaining for which damages can be awarded, save for some physical injury to the dwelling, that there can be no recovery for any personal inconvenience or annoyance. In other words, the claim is, that every personal annoyance or inconvenience is included and comprehended in the term outrage to the feelings, and that life cannot be made uncomfortable by means of noisome smells or by corrupt and impure air filling the dwelling place, without an outrage to the feelings of the owner, within the meaning of this statute. The term outrage implies something more than mere inconvenience or annoyance or injury. It implies excess, violence, as well as injury, — violence and wrong, and that intended and designed; and when applied to the feelings, it implies not mere physical pain, but mental.
When the wrong is done under circumstances of indignity or contumely and consequent public disgrace, or other circumstances calculated to produce in the party mental suffering, the circumstances may ordinarily be considered by a jury in estimating damages against the original wrong-doer; but in a suit against the representative of such wrong-doer, they are by the statute excluded. No evidence of this kind was offered in this case. On the contrary, it was expressly admitted that the wrongdoer was actuated by no malicious or improper motive, but was simply exercising what he deemed to be his right, with no design to injure his neighbor.
The exclusion of this evidence would not exclude from the consideration of the jury evidence that personal annoyance and inconvenience did result from the act of the party to all persons who came to. reside in the house-^the plaintiff, the members of
' We have looked through the evidence in this case, and whatever opinion we may have formed had the evidence been submitted to us, we do not see from it, that a verdict in favor of the plaintiff might not well enough have been rendered by the jury without imputing to them passion or prejudice, or any disposition to act in disregard of the evidence, and we do not feel warranted in disturbing it from any consideration that it is for the plaintiff rather than for the defendant.
Another ground assigned for new trial is, that the court rejected evidence offered by the defendant for the purpose of showing that other stables, similarly situated, did not create such annoyances. It does not seem to us necessary to do more than state the point. The admission of such evidence would be of evidence opening other issues than the one made in this case. It would-raise an issue as to every stable to which such evidence relates, whether it was a nuisance to the neighborhood in which it was located- — -not to this; and would leave the issue here the same, — did this stable in fact annoy this neighborhood ? If it did, it would be none the less a nuisance that other stables did not annoy the neighborhood in which they were.