111 Ky. 361 | Ky. Ct. App. | 1901
Lead Opinion
Opinion op the court by
Reversing.
In 1897, the city of Paducah, having bought about 20 acres of land about three miles from its corporate limits, located and established a hospital upon it for the purpose
Various grounds are urged here with much earnestness, and force why the judgment should be reversed. We will state and dispose of them in the order of their importance.. It is argued on behalf of the city that, inasmuch as it is required by the statute law of the State and by existing-conditions to establish and maintain a hospital, which, under the mandate of the statute, it is compelled to establish within not less than one mile of the limits of an incorporated town or city, it can not be mulcted for having performed this duty, unless it has done so in a negligent or unskillful manner; that, having used care in the establishment of its hospital, it can not be liable to appellee, unless in the matter of the managing or conduct of the hospital,,
There was much evidence introduced on the trial as to the extent of the danger to .persons on appellee’s premises,, it being the effort of the city to show that the danger was more imaginary' than real, and at best was so remote and improbable as to be practically nil. Many medical witnesses of apparent good standing testified that, while the disease was one both contagious and'infectious, under the systems of treatment now in use there was practically no danger of the disease being contracted as much as 30 feet away from the subject when not confined in a close room with it. Indeed, some of them testified that in the open air there was no danger of contracting the disease , a.
In the course of the introduction of the evidence (and there was much of it of the character described without going into it in detail) many witnesses were allowed to testify for appellee without showing themselves to be qualified by a sufficient acquaintance with the property, or with the market value of that or similar property, to be able to testify thereof. They, however, were permitted to state to the jury that, in their opinion, the vaSue of the property was diminished one-half. Some used the expression, “It would be worth nothing to me.” All of this class of evidence should have been excluded, and appellee should have been confined to the testimony of such witnesses who showed that they were acquainted with the property, its value, or the value of similar properties in the same vicinity and their market values, and with the fact to what extent these market values had been affected by the location of the pest-house. The proper question would be: What was or would be a reasonable market value of the premises in question but for the location of the pest house, and what was its actual market value with the pest house located and maintained as it was? We are of the opinion that to the extent that the evidence
The court gave the jury the following instructions: “Instruction No. 1. The court instructs the jury that the law of this State made it the duty of the city of Paducah to locate and build a suitable smallpox pest house in Mc-Cracken county, not nearer the city limits, however, than
The appellant criticises the statement in the instructions “that there must have been a real probable danger of the smallpox being communicated through the atmosphere from said pest house and upon a portion of the plaintiff’s land,” etc. The court evidently intended by the term “real probable danger” to say that the probable danger must be an actual fact, as distinct from one solely imaginary or apprehended. Upon the whole, we think the instructions, except ais to measure of damages, are more favorable to appellant than it was entitled to.
It will be observed that the court failed to give to the jury a criterion or measure of damages in his instructions. An instruction on this point was offered by appellee as-follows: “Instruction No. B. The court instructs the jury that, if they should find for the -plaintiff, then that
For the reasons indicated, the judgment is reversed, and cause remanded, with directions to award appellant a new trial under proceedings not inconsistent herewith.
Whole court sitting.
Dissenting Opinion
dissents.
The instructions given are more favorable to defendant than it was entitled to. If the establishment of the pest house has caused a decrease in the value of the land, and that without regard to the fact whether or not there was real danger of persons taking the smallpox by reason of the establishment of the pest house, I do not ■ think that the court erred to the prejudice of defendant as to the admission of the testimony. I think the judgment should be affirmed.