Tennessee Coal, Iron & Railroad v. Wright

68 So. 339, 192 Ala. 422, 1915 Ala. LEXIS 50

• Court: Supreme Court of Alabama
• Decided: April 22, 1915
• Status: Published

Opinion

MAYFIELD, J.

The action is to recover damages for the pollution of a stream of water which flowed through plaintiff’s premises. The defendant ivas operating a by-product plant on or near the stream, and it is alleged that defendant emptied chemical acids and other foreign matter into the stream, thereby rendering it unfit for domestic use by the plaintiff. The plaintiff was engaged in the business of pasturing, fattening, aud slaughtering beef cattle; and the chief claim for damages, as appears from the final issue and all the evidence, is rested on injury to the plaintiff’s cattle, in that they drank the polluted Avater and Avere thereby diseased and made sick and, in some instances, caused to die. The plaintiff recovered a verdict and judgment for $675, from which judgment the defendant prosecutes this appeal.

(1) The first error insisted upon by appellant is that it was entitled to the general affirmative charge in its favor. Appellant, we think, is clearly in error as to this contention, under all the issues and all the evidence. The questions whether plaintiff was entitled to a verdict and, if so, for what amount, were both clearly for the jury. While there is no direct proof that the defendant operated a by-product plant, and thereby polluted the stream as alleged, the bill of exceptions does not purport to set out all the evidence, but only the “substance” thereof, anl “all the tendencies.” The bill of exceptions also contains the following recital: “Counsel for defendant in stating the case to jury said the defendant did not deny the allegations of the com-plant that it operated a by-product plant and discharged some by-products into Possum Valley creek, but they denied that the use of said creek by them was unreasonable or unwarranted in law, and further denied that plaintiff was injured thereby.”

But without these recitals we think there was evidence sufficient to carry the question to the jury.

(2, 3) There was no error in refusing any one of charges 45, 50, 51, 56, and 60. Each of these charges is subject to one or more of the following defects: Failure to hypothesize plaintiff’s knowledge of the danger that the water would injure his cattle; failure to hypothesize plaintiff’s omission to exercise reasonable care or prudence, after he had, or ought to have had, knowledge or notice that the water would so injure his cattle, to prevent their drinking the water or standing in it; exacting too high a duty of the plaintiff to the end of minimizing his damages; charging that plaintiff cannot recover any damages as for injuries sustained, when the facts hypothesized, at best, would only prevent the recovery of the full damages sustained, in case the plaintiff has negligently failed to minimize his damages as the law requires.

(4) There was no reversible error in any part of the oral charge as to which exceptions were reserved. The charge, considered as a whole, and in connection with the requested charges which were given at the instance of the defendant, did not prejudice the rights of the defendant, under the issues and the evidence in this case.

One of the many charges given at the request of defendant, as to the duty of the plaintiff to minimize the damages, was as follows: “(11) The court charges the jury that the law imposed upon the plaintiff the duty of taking steps to minimize damages which was being done to him on account of this nuisance, if it was a nuisance, and if you believe such damages were being done, and if you believe that the plaintiff knew that his stock were being injured by drinking this water and could have reasonably secured water elsewhere and thereby lessened the damages that was being done to him, it was his duty to secure such water and lessen such damages, and he cannot recover on account of any damages which he could have so lessened.”

This was certainly as favorable a charge, or more so, than the defendant had a right to have, and cured any possible misleading tendencies of the oral charge.

(5) We call attention to the fact that a great number of the refused charges in this record are not numbered or otherwise identified, and that we could not consider any except those which were identified by the brief and the assignment of errors.

The law as to the measure of damages, as well as the law as to the duty of the plaintiff to minimize his damages, in cases like this, has been so frequently and so recently stated by this court that it is not necessary to reiterate or restate it here. See Sloss-Sheffield Co. v. Mitchell, 181 Ala. 576, 61 South. 934-937; Id., 161 Ala. 281, 49 South. 851; Id., 167 Ala. 226, 52 South. 69.

We find no error in the record, and the judgment must be affirmed.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., concur.