Parker v. Union Woolen Co.

42 Conn. 399 | Conn. | 1875

Carpenter, J.

The right of the defendants to use a steam whistle in the' course of their business must be conceded. Knight v. Goodyear India Rubber Glove Manuf. Co., 38 Conn., 438. They are bound however to use it in such a place and in such a manner, that it shall not be a nuisance. A lawful business may be so conducted as to produce harm or in jury to the persons or property of others. In such cases the proprietor will ordinarily be liable. Whitney v. Bartholomew, 21 Conn., 213; House v. Metcalf, 27 Conn., 631; Knight v. Goodyear India Rubber Glove Manuf. Co., supra.

The use of a steam whistle is not per se a nuisance. It is not expressly found that the whistle used by the defendants was a nuisance; but it is insisted that that fact may and ought to be legally inferred from the other facts stated.

The case presents two questions: was the whistle a ■ nuisance? and if so, did it cause the injury of which the plaintiff complains ? Both questions must be answered in the affirmative or the plaintiff cannot recover.

We pass by the first question, and consider only the second. Did the nuisance, if it was a nuisance, cause the injury ?

It is a familiar principle in this class of cases that the plaintiff must show that he exercised ordinary care at the time of the injury or he cannot recover; in other words, if his own negligence essentially contributed to the injury it cannot be said, in a legal sense, that it was caused by the negligence of the defendant. Although this is not a case, strictly speaking, of contributory negligence, yet we think the same principle applies. Obviously the plaintiff must take the risk of all known faults in the horse. If there had been no exciting cause and the vicious habit alone had caused its death, it is clear that the plaintiff must have borne the loss. According to the report of the committee the vicious habit of the horse and the noise of the whistle combined to produce the injury. The finding upon this point,is as follows:—“If the whistle had not been so sounded the horse would not have pulled so as. to have caused his death; and if the horse had been free • from such habit of pulling he would not Have been so killed.”

Under this finding it must'be conceded that the death of tlie horse was caused quite as much by his bad habit as by the noise of the whistle. This being so, the law does not attribute the injury to the whistle so as to hold the defendants liable.

We advise judgment for the defendants.

In this opinion the other judges concurred.