Ottawa Gas Light & Coke Co v. Graham

28 Ill. 73 | Ill. | 1862

Walker, J.

On the trial below, appellant offered to prove how much it would cost to obtain a supply of good water, by purchasing a right from the water company; or by the construction of a cistern. The court refused to permit the introduction of this evidence, and that decision is assigned as one of the errors on this record. If the erection of the gas works produced injury to appellee’s well, and polluted the water, he has the undoubted right to recover a sum sufficient to cover any loss he has thereby sustained. The company has the right to so use their franchise as to produce no injury to the rights of others. When they obtained their charter, there was an implied duty imposed, that they should not in its exercise deprive, or even incommode others in the exercise of their rights, without becoming liable to respond in damages. In. ascertaining the true measure of such damages, all the circumstances connected with the injury are proper to be considered by the jury.

In this case it may be a fair measure of damages, to ascertain the cost of furnishing a sufficient quantity of water equally pure with that which supplied the plaintiff below from liis well before its injury by the gas works. When that cost is ascertained, and the cost of keeping the conductors and other machinery in repair, the allowance of such a sum as would produce an annual interest sufficient to furnish the water from the company and make the repairs, would be a fair measure of damages. But if the supply when thus obtained, was inferior in salubrity, or taste, that should also be taken into account. So if there was danger that it would not be permanent. Property furnished with an inadequate supply, or with an abundance of water of inferior quality, would be of less value than if supplied with an abundance of water of good quality. If a resort to a cistern is the only means of replacing the proper supply of water, then its quality should be taken into consideration, and if inferior in quality, that fact should have its due weight. In this view of the case, we are of the opinion that this evidence was improperly rejected.

1 Another means of arriving at the damages, would be to ascertain the depreciation of the value of the property by reason of the erection of the gas works. To ascertain how much less the property would sell for in consequence of the erection, than if it had not been made. And in ascertaining that fact, all the circumstances which might show a depreciation in value should be considered. If the property would sell for the same amount, independent of a láse in similar property, then there would be no loss, but if it would not, then the difference would be the damages sustained. J

It is also insisted, that the court erred in the qualification annexed to appellee’s first instruction. By it the j ury were informed, that in making an estimate of the damages, they might exercise their judgment upon the facts in proof, by connecting them with their own knowledge and experience. If this was designed to refer to their general knowledge as intelligent businessmen, it was correct. Jurors, when the evidence is heard, must test its truth, its weight, and what it all proves, by their knowledge and judgment, derived from experience, observation and reflection. They are not bound to regard evidence precisely as given, but must consider its truth and weight by their knowledge of men, the business affairs of life, together with the motives which influence men. These are all legitimate and necessary means of arriving at the truth, and if the jury so understood the instruction, it was proper.

If, however, the jury understood it to apply to special circumstances and facts connected with the case, it would be calculated to mislead. In forming their verdict, the jury must be governed by the evidence admitted in the case. If a juror has knowledge of facts not in evidence, they have no right to consider them in making up a verdict. Before they can take these into consideration, the juror rhould be sworn and testify to the facts, precisely as any other witness. The party against whom it may operate, has the right to cross-examine the witness, and must have an opportunity of meeting it with rebutting evidence. This instruction was liable to be understood by the jury, as authorizing them to act upon facts not in evidence, but within their knowledge. It should have been modified so as to exclude such a right, and so as to limit their action to their general knowledge and experience, and this is the extent to which the case of the City of Chicago v. Major, 18 Ill. 319, proceeds.

The judgment of the court below is reversed, and the cause remanded.*

Judgment reversed.

The Chief Justice did not take any part in this decision.