81 Ill. App. 424 | Ill. App. Ct. | 1899
delivered the opinion of the court.
Plaintiff in error is engaged in the manufacture and distribution of gas for fuel and illuminating purposes in Belvidere, and has a gas plant located near the residence of defendant in error. The latter brought suit for injuries to her premises occasioned by the erection and operation of the plant.
The declaration contains five counts. The first count charges that the defendant negligently caused to proceed from its plant smoke, gas and other vapors and noxious matter which corrupted the air, and that in consequence plaintiff was permanently injured in the enjoyment of her dwelling house. The second count charges that defendant did not use proper care in the operation of its-plant, but permitted leaks to occur in buildings, tar pits, basins, etc., whereby gas escaped and permeated the earth; that the dwelling- house was rendered unwholesome and offensive, and the pure and wh.olesome water in- a well on the premises, was rendered impure and unwholesome by said escaping gas. The third, fourth and fifth counts all charge injury to plaintiff’s premises and pollution of water in the well by the escaping gas.
To this declaration the plaintiff in error filed a plea of the general issue, and upon trial the jury returned a verdict in favor of defendant in error for $500.
A motion for a new trial was overruled and judgment entered for the amount of the verdict.
The principal error assigned by the plaintiff in error, and the one upon which it almost wholly depends for a reversal of this judgment is “ that the declaration and each and every count thereof, is insufficient on which tobase the judgment herein.
Because the court instructed the jury that the defendant might be found guilty herein, if refuse escaped from its plant and polluted the well of plaintiff, Avhen there is no averment in the declaration of the plaintiff concerning the same.
The instruction complained of is the fourth, given for defendant in error, and is as follows:
“ If you believe from the evidence that the defendant, Belvidere Gas Light and Fuel Company, has negligently and improperly allowed noxious gases, odors and refuse from its gas plant to escape and thus pollute the well of water of the plaintiff, then you are instructed that the defendant is liable in this action for said injury, and you should find for the plaintiff on such issues, such damages as the evidence shows she has suffered by reason of such negligence and improper conduct of the defendant,”
Two of the instructions presented by plaintiff in error were also modified to conform to the theory expressed in said instruction Flo. 4. The “ refuse ” referred to is the residuum left from the substance out of which the gas has been manufactured, and is something like tar. It is not charged in- any of the counts of the declaration that water of the well was polluted by the escape of this “refuse.” Under the averments contained in thedeclaration the instruction complained of was faulty so far asitcalled attention to the pollution of the water by ref use escaping from the gas plant. The declaration, however, ivas sufficiently broad to cover any injury to the water occasioned by the manufacture of the refuse and its deposit in the tar well, not resulting from the actual escape of the same from the premises of plaintiff' in error and its contact with the premises of defendant in error. It appeared from the evidence, that the “ refuse ” was conveyed into a well, known as the tar well, some sixty feet from the plant. There was no evidence whatever that the refuse ever escaped from the plant or the tar well into the well of defendant in error, or upon her premises. The jury therefore could not have found that the water in the well of defendant in error was polluted by the escape of the refuse. We are of opinion that the plaintiff in error was not in any way injured by the giving of said instruction bio. 4, nor in the modification of the two instructions offered by plaintiff in error on the same subject, and that therefore there was no prejudicial error in that connection. It is a rule of law well settled that error without prejudice is no ground for reversal. Neufield v. Rodeminski, 144 Ill. 83; Moses v. Loomis, 55 Ill. App. 342.
Plaintiff in error complains because the trial court refused its instruction to the effect that, if the jury believed from the evidence the plaintiff in error in erecting, keeping and operating its gas works and the manufacture.and keeping of gas took all reasonable and proper precaution and used the best and most approved machinery and appliances in its business, and did all that any reasonable and prudent person could do to prevent the escape of gas from its plant, and to prevent the water in defendant in error’s well from becoming contaminated, it was not liable in this action. The fact that a business is conducted with all reasonable care to prevent injury to the rights of others will not of itself relieve the proprietor from responsibility if an injury actually results therefrom to others. Cooper v. Randall, 53 Ill. 24; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322.
There was no error in admitting testimony concerning the condition of water in wells on other premises in the neighborhood. Such testimony was admissible to show the extent and character of the injury sustained by defendant in error and as tending to prove that the operation of the gas plant could produce the injury complained of. Wylie v. Elwood, 134 Ill. 281; Cooper v. Randall, 59 Ill. 317.
It is further urged that the court erred in admitting testimony concerning conditions which have arisen since the commencement of the suit. In the case of Hyde Park Light Co. v. Porter, 167 Ill. 276, which was a suit for injuries to premises caused by the location, erection and operation of an electric light plant, it was said: “ It was not the erection of the building itself nor the mere putting into it of machinery, which gave the right of action, but it was from its operation, whereby dirt, dust, ashes, etc., were cast upon plaintiff’s premises, and jarring and vibrating produced, that the damages ensuedand it was there held that the plaintiff was entitled to recover both present and future damages; that “if he was confined to damages sustained between the-time appellant commenced operating the plant and the date the action was commenced, he would be denied all substantial relief.”
This action was brought for all damages arising from the causes set forth in the declaration and it was proper to admit • evidence as to the conditions surrounding the premises up to the date of trial. The evidence shows clearly that the well of defendant in error was polluted, and the value of the premises otherwise depreciated by the location and operation of the gas plant of plaintiff in error. The verdict of the jury was warranted by the evidence, and the damages are not excessive.
As we find no prejudicial error in the trial of the cause, the judgment of the Circuit Court will be affirmed.
