| Ill. | Jun 21, 1900
delivered the opinion of the court:
The only ground of reversal urged by appellant is that the trial court erred in modifying the following instruction asked by appellant:
“The jury are instructed that a person can in no case recover for damages to his business or property which he permits to go on knowing that it is going on, and without making every reasonable effort and taking active steps to prevent it or have it stopped. If you believe, from the evidence, that plaintiffs knew théir premises were being damaged, and that they permitted the damage to continue when by their own efforts the damage might have been stopped or prevented, then the defendants are not liable for the damage so caused, and plaintiffs cannot recover in this suit for any such damage, unless the jury further believe, from the evidence, that the defendant directed the plaintiffs not to do so.”
The last clause, “unless the jury further believe, from the evidence, that the defendant directed the plaintiffs not to do so,” was added by the court in modification of the instruction. The Appellate Court, in its opinion by Mr. Justice Freeman, properly disposed of this question, and what is there said with reference to this instruction may be adopted here:
“The instruction as presented to the court, and before its modification, stated, we think, substantially the correct rule of law and was applicable to the case in view of the evidence. The law requires that appellee should make reasonable efforts at least to protect themselves from unnecessary Injury, and they cannot recover damages occasioned by their own neglect. In Hamilton v. McPherson, 28 N.Y. 72" date_filed="1863-09-05" court="NY" case_name="Hamilton v. . McPherson">28 N. Y. 72, it is said by Judge Selden: ‘The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this, and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.’ It is said in Hogle v. New York Central and Hudson River Railroad Co. 28 Hun, 363: ‘If it were in the plaintiff’s power by reasonable efforts to prevent the increase of the wrong, he should use that power.’ To the same effect are the cases, Miller v. Mariners' Church, 7 Me. 51" date_filed="1830-06-15" court="Me." case_name="Miller v. Trustees of the Mariner's Church">7 Me. 51; Mather v. Butler Co. 28 Iowa, 253" date_filed="1869-10-26" court="Iowa" case_name="Mather v. Butler County">28 Iowa, 253; Town Co. v. Leonard, 46 Kan. 354" date_filed="1891-01-15" court="Kan." case_name="Sherman Center Town Co. v. Leonard">46 Kan. 354. The modification complained of is, we think, erroneous. We find no evidence tending to show that the ‘defendant directed the plaintiffs not to’ make any effort to prevent the damages alleged to have been caused to the latter’s premises, generally by smoke and dust and cold weather. The testimony of one of the appellees is, that the latter did not make any effort to shut off the exposed rooms from the rest of the building because they were told they could not do so by the contractor or a foreman; but the witness is not positive that the contractor did so tell him, and there is no evidence that either the contractor or any foreman had, or pretended to have, authority to so represent the appellant. The contractor testified that he had no foreman and that the work was all sub-let. Ho reason appeared why the rooms in question could not readily have been shut off from the rest of the house. Such statement, if made, could not justify appellees in neglecting' their plain duty of protecting, themselves, so far as they reasonably could, from unnecessary damage.”
In Sutherland on Damages (vol. 1,.—2d ed.—sec. 88,) it is said: “The law imposes upon a party injured by another’s breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be' unnecessarily enhanced, the increased loss,—that which was avoidable by the performance of his duty,—falls upon him.” It would be most extraordinary for one who had committed a tort to direct the injured party not to use the reasonable diligence imposed upon him to prevent an increase of the damage, and certainly there is no evidence in this record tending to show that the appellant did give any such direction. We concur, therefore, in the view of the Appellate Court that the modification was erroneous. But in our view it should work a reversal and remandment of the cause for another trial. We are unable to see how the Appellate Court, having found reversible error in the record, could, under the facts of this case, correct that error by assuming that it only affected the appellant to the amount of $1000. The instruction on its face applies to no particular item of damage. It may have induced the jury to include in its estimate of damage a part of the $1500 item set forth in the bill of particulars as well as the $1000 item. It may also have influenced the verdict as to the amount of damage done to the' seven rooms. An error in an instruction applying generally to several items of damage claimed in an action cannot be cured by requiring a remittitur as to any one of those items.
We think the Appellate Court, in its conclusion as to the error in the instruction, should have reversed the judgment and remanded the cause for another trial, so that a jury, upon the instructions without error, might estimate and fix the damages.
Reversed and remanded.