4 Denio 311 | N.Y. Sup. Ct. | 1847
It is a rule of the common law that a man should so use his own as not to hurt another; and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages. There are many cases in the books where this doctrine has been applied; and among the number are those where a man erects a smith’s-forge, swine-sty, lime-kiln, privy, or tallow-furnace so near the dwelling-house of another as to render it unfit for habitation. (Bradley v. Gill, Lutw. 29; Aldred’s case, 9 Coke, 58; Jones v. Powell, Hutton, 135; Morley v. Pragnell, Cro. Car. 510.) It is not necessary to a right of action that the owner should have been driven from his dwelling: it is enough that the enjoyment of life arid property has been rendered uncomfortable. (Per Lord Mansfield, in Rex v. White, 1 Burr. 337.) Although the manufacturing of steam engine boilers is a lawful business, it was carried on in such a manner in this case as to make it a great annoyance to the plaintiff; and she is undoubtedly entitled to redress by action. If the suit had been against Messrs. Jagger & Co., the immediate actors in the wrong, the right to recover would have been quite clear. But whether the defendant is liable is a more difficult question.
It is said that the defendant is liable, because he was the owner of the shop in which the wrong was done; and we are referred to the case of Bush v. Steinman, (1 B. & P. 404,) where the owner of a house, who had contracted with a surveyor to put it in repair for a stipulated sum of money, was held answerable to a third person who had suffered an injury in consequence of the improper act of one of the workmen in making the repairs, although the workman was neither the servant, nor under the control of the owner of the house. That case has been seriously, and I am inclined to think, justly questioned in England. (Laugher v. Pointer, (5 B. & C. 547.)
It was clearly wrong to allow the witness to express an opinion as to the amount of damage. (Norman v. Wells, 17 Wend. 136, 161.) It was the business of the witness to state facts; and of the jury to assess the damages.
The jury assessed the damages at a sum beyond the amount laid in the declaration ; and the plaintiff, instead of remitting the excess, as should have been done, and taking judgment for the residue, has entered a judgment for the whole amount of damages found by the jury. This is error. (Curtiss v. Lawrence, 17 John. 111; Dox v. Dey, 3 Wend. 356; Hoblins v. Kimble, 1 Bulst. 49; Cheveley v. Morris, 2 W. Black. 1300; 1 Chit. Pl. 372, ed. of ’37.) The plaintiff relies on the case of Jackson v. Covert, (5 Wend. 139,) but it does not touch the question. The point discussed there, though not necessarily decided, was, whether on appeal by the defendant from the judgment of a justice, the common pleas can give judgment for a sum exceeding the jurisdiction of the justice’s court. Not a word was said about a judgment for damages beyond the amount laid in the declaration; and clearly the court did not intend to depart from the settled law on that subject.
Judgment reversed.
See The Mayor, &c. of New-York v. Bailey, (2 Denlo, 433, 443, 446,) per Walworth, caancellor, and Hand, senator.