120 So. 13 | La. | 1928
Plaintiff is, and has been for many years, the owner of a brick building situated on St. Joseph street between Carondelet and Baronne streets in the city of New Orleans. Defendant is a dealer in automobile tires; and for the purpose of removing and replacing solid rubber truck tires uses a certain powerful hydraulic press operated by an electric motor. *580
From January, 1923, to October, 1924, defendant occupied the premises next door to the building owned by plaintiff, and plaintiff claims that the operation of said press caused her building to vibrate, and damaged it to the extent of $5,000. She also claims $5,000 to her health, and a like sum for "inconvenience, discomfort, mental anguish and worry," due to the same cause.
There is no evidence that plaintiff's health has in the least degree been affected by the causes set forth. Nor do we find that plaintiff has suffered any inconvenience, discomfort, mental anguish or worry, other than such as is usual and incidental when neighbors fall out and determine to thrash out their differences in a lawsuit. We will therefore confine our inquiry to the damages, if any, to plaintiff's property.
And it is precisely in this that the cause now under consideration differs from Crump *581
v. Carnahan,
But the evidence satisfies us that the dilapidated and damaged condition of the building was due to four separate contributing causes, and not solely to the operation of defendant's machine, to wit: (1) Natural wear and tear, the building being at least 50 and possibly 80 years old; (2) for more than 25 years, and up to a few years ago, the street in front of plaintiff's property was occupied by the tracks of an interstate steam railroad over which long and heavy freight trains were constantly moved to and fro, with consequent severe vibration to the buildings fronting on said street; (3) some 20 years *582 ago a system of deep subsoil drainage was put into operation in the city of New Orleans, thus lowering the water level and withdrawing the moisture from the soil, in consequence whereof the foundations of all buildings in the city settled more or less, and more or less unevenly, with consequent damage to walls and plastering everywhere; and (4) defendant's machine operated as aforesaid in the adjoining building some 18 months or so.
Cause No. 1, abovesaid, was a continuous one, but slow in its effect. Causes Nos. 2 and 3 were arrested as to their effect when the railroad tracks were removed and when the water level of the soil had reached its ultimate point, all of which occurred some years before defendant began to operate its machine in the adjoining premises.
It is therefore impossible to say exactly how much of said damages was caused by the operation of the press, since no survey of said building was made at the time the operation was begun. But it is none the less quite certain that some of said damage was caused thereby.
But the bare fact that a plaintiff cannot establish exactly the amount of damages suffered by him and occasioned by the fault of the defendant will not suffice to discharge said defendant, when it is clear that plaintiff has in fact suffered some damages. Green v. Farmers' Consolidated Dairy Co.,
Under such circumstances, the court must fix the quantum of such damages as best it can with the lights before it, and finds itself "in the position of having to assess damages `as in cases of offenses, quasi offenses and quasi contracts,' wherein `much discretion must be left to the judge or jury.'" Schmidt v. City of New Orleans,
And in this case our conclusion, after careful consideration, is that the sum of $750 *583 is a fair allowance for defendant's contribution to the damage to plaintiff's property.