Fay v. Whitman

| Mass. | Oct 15, 1868

Wells, J.

The instructions given to the jury at the trial were sufficiently favorable to the plaintiff. The third instruction is somewhat obscure and ambiguous; but, when taken in connection with the others, the meaning of the Whole is clear; to wit, that, while no liability results from those occasional or periodical exhalations that arise from such removals of filth as usually become necessary from the occupation of lands for purposes of business, or even domestic use, yet, when the nature of the business is such that removals become unusually frequent, or that such exhalations become permanent or frequent, an action will lie for the injury occasioned thereby to another in the enjoyment of his own premises. The instructions asked for by the plaintiff made no such discrimination. They required an immunity from any degree of impurity of air, which would be incompatible with the assemblage of men into communities. They were therefore rightly refused. The substance of all the prayers, except so far as obnoxious to this objection, was embraced in the instructions actually given.

The testimony, offered by the plaintiff, from other persona residing in the vicinity, but at a greater distance from the slaughter-house than himself, appears to us to have been improperly excluded. It tended to show the existence, the character and the frequency of the offensive odors that came from the defendant’s premises. It was not competent for the plaintiff to show that the property of other persons was injuriously affected by the cause of which he complained. But he might show the existence of the cause, by the testimony of any persons who had observed it, from any position, not peculiarly exposed to its influence.

If the proposed testimony was all included in one offer, the fact that a part was incompetent did not require nor warrant the exclusion of that part which was competent and proper for the consideration of the jury. Such testimony having been excluded by the court upon the objection of the defendant, the

Exceptions must be sustained.