269 S.W. 353 | Ark. | 1925
STATEMENT OF FACTS.
W.A. Yates and Gordon Buie brought separate suits against the Missouri Pacific Railroad Company to *171 recover damages for negligently burning the carcasses of two cows near their residences.
The defendant filed a separate answer in each case, and denied the material allegations of the complaint. The cases were consolidated and tried together.
According to the evidence for the plaintiffs, the residence of Gordon Buie was situated 234 feet and the residence of W.A. Yates 500 feet from the point where the railroad company burned the carcasses of the two cows on its right-of-way. The cows were killed by a train operated by the defendant, and its servants commenced to burn the carcasses some time Sunday morning, on July 15, 1923. They continued to burn them until late the following Wednesday evening. The weather was pretty hot, and the smell was very offensive. The plaintiffs and their families were made sick, and could not eat with any comfort. They could not eat or sleep without closing the doors and windows of their houses. The carcasses did not burn continuously, because there came up a rain once or twice and put out the fire. The fire was then rebuilt. The wind was coming in the direction of the plaintiffs' houses during most of the time of the burning. One of the cows was not cut up very much, and both of them could have been moved to another place for the purpose of burning their carcasses.
According to the evidence for the railroad company, the fire was started Sunday morning and the carcasses were burned up by the following Monday evening. One of the cows was so cut up that its carcass could not be moved. The smell of the burning carcasses was not very offensive, and there was no negligence in the burning.
The jury returned a verdict in favor of each plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court. (after stating the facts). It is earnestly insisted that the evidence is not sufficient to warrant the verdict. The evidence shows that the plaintiffs lived in rented houses, and that the servants of the railroad company began to burn the carcasses on Sunday morning and continued to burn them until late the following Wednesday evening. The wind, for the most part, was blowing in the direction of the plaintiffs' houses, and caused them and their families extreme discomfort, and also made them sick to a certain extent.
It is true that our statute provides that, when any horse, cow, or other animal named in the section shall die from disease or accident, it shall be the duty of the person having possession thereof to immediately cremate said animal. Crawford Moses' Digest, 365. So, when the defendant, in the operation of one of its trains, killed the two cows, it became its duty to burn their bodies.
The right of the defendant to burn the carcasses on its right-of-way may perhaps not be denied, but it is equally true that it would be responsible for all results occasioned by the burning in such a negligent manner as to constitute a nuisance. The maxim, "use your own property so as not to injure another," is peculiarly applicable in nuisance cases. If one does in act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on him to find some other place to do that act, where it will be less offensive. 2 Lewis' Blackstone's Com., * p. 218.
In discussing the question in Baltimore Potomac Rd. Co. v. Fifth Baptist Church,
This rule was quoted and approved by this court in Junction City Lbr. Co. v. Sharp,
It is next insisted that the court erred in instructing the jury on the measure of damages. The court instructed the jury that, in actions like this, discomfort to the plaintiff and his family living with him, and whom he is bound to support, is a proper element of damages. Counsel point to the fact that such an instruction was held erroneous in the caste of Junction City Lbr. Co. v. Sharp,
In cases like this, where the nuisance only lasted for a few days, the plaintiff is entitled to recover because of the inconvenience and discomfort to himself and family. Baltimore Potomac Rd. Co. v. Fifth Baptist Church,
Finally, it is insisted that the court erred in submitting to the jury the question of punitive damages, and in this contention we think counsel for the defendant are correct. In cases of this sort recovery for punitive damages should only be allowed where there is willful or flagrant violation of the rights of another. Joyce on Law of Nuisances, 258 and 503, and Yazoo Miss. Valley Rd. Co. v. Sanders,
There is nothing in the evidence from which a jury might legally infer that the defendant acted in willful or flagrant disregard of the rights of the plaintiffs in burning the carcasses.
Therefore, for the error in instructing the jury on punitive damages, the judgment must be reversed, and the cause will be remanded for a new trial.