135 Mass. 150 | Mass. | 1883
The defendant dug upon his own land, which formed the natural lateral support of the plaintiff’s adjoining land, so that some of the plaintiff’s land and a stone wall upon it fell, and some trees which had been set out upon the land by the plaintiff were endangered. This, if done without malice or negligence, would be a wrongful act, and entitle the plaintiff to damages for the injury to his land in its natural state. Gilmore v. Driscoll, 122 Mass. 199, and cases cited. The court ruled, in effect, that, if the defendant’s violation of the plaintiff’s right of lateral support occurred through gross carelessness, or want of ordinary attention to the rights of the plaintiff, the measure of damages might include injury to the feelings of the plaintiff, as well as injury to his property. The court did not find, and the evidence does not disclose, any circumstance of aggravation which could cause injury to his feelings, unless gross carelessness can be deemed such. “Want of ordinary attention to the rights of the plaintiff ” is want of ordinary care. “ Gross carelessness ” does not imply, but, in the construction of the ruling, excludes an intentional and wilful wrong to the plaintiff. The negligence of the defendant consisted in the act of his servants in carelessly digging upon his land near the land of the plaintiff. It was a careless act; and, however gross the carelessness, the court found no wrong, and nothing to affect or give character to the act, except want of care. There was not found, directly or by implication, any act or word of insult or contumely, — any intentional violation of the plaintiffs rights, — any “ wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” Milwaukee & St. Paul Railway v. Arms, 91 U. S. 489. Waiving the question whether the rule of damages, given would have been proper had the injury been inflicted with a manifest disregard of the plaintiff’s rights, and with a purpose to injure him exhibited, it is sufficient to say that there was nothing in the nature of the injury to the plaintiff’s property which involved injury to his feelings, and nothing in the circumstances attending it, as shown by the evidence and found by the court, which could give him a right to damages for wounded feelings. Emblen v. Myers, 6 H. & N. 54. Canning v. Williamstown,
Meagher v. Driscoll was trespass for breaking and entering the plaintiff’s close, which was the burial-place of his deceased child, and removing the remains of the child. The defendant contended that the act was done through accident and mistake as to the plaintiff’s rights, and that the measure of damages should be the actual injury to the real estate only. A ruling, that, if the defendant acted either with a wilful disregard of the plaintiff’s rights, or under a mistake arising from gross carelessness, the jury might, in assessing the damages, consider the injury to the plaintiff’s feelings, was sustained. The natural consequence of the trespass was injury to the plaintiff’s feelings, and the point decided was, that the damages could not be mitigated by reason of a mistake of the defendant arising from his gross negligence.
In the case at bar, gross carelessness was the only ground for allowing damages for injured feelings. Neither the plaintiff’s ownership of his land, nor the use which he had made or which he intended to make of it, was sufficient so to identify or connect him with it that the injury to it would, of itself, be a personal injury to him. Exceptions sustained.
