Evans v. Wilmington & Weldon Railroad

Smith, C. J., (after stating the facts). While this is a case in which we are required to examine the proofs and pass upon their sufficiencjr to warrant the interlocutory order of restraint, we do not, after weighing and considering it, deem it necessary to do more than state the convictions produced. While much of the testimony is variant as to the existing condition of things, and being ex parte, renders it difficult to arrive at any satisfactory conclusion as to the facts, it will be noticed that the most material element in the controversy, the effect of the exhalations arising from the offensive admix *48 ture which flows by the plaintiffs’ lot, upon- its sanitary condition, is testified to by two experts — physicians—whose affidavits are expressed in similar terms, and their testimony is produced by the plaintiffs. It is as follows : “ Charles J Gee, being duly sworn, says: That he is a practicing physician, and is well acquainted with the property of Augusta J. Evans, situated in the town of ’Weldon, described in the complaint in the cause of Joseph T. Evans and wife Augusta J. Evans against the Wilmington & Weldon Railroad Company, and it is his opinion that the filth, slops and water thrown and emptied, and permitted to flow on the property of the plaintiffs, described in the complaint, by the Wilmington & Weldon Railroad Company, are dangerous to the health of the plaintiffs, and make it uncomfortable and unpleasant to them, the odor arising from the same being-offensive and dangerous.” A second affidavit by the same party is as follows: “Charles J. Gee, being duly sworn, saj^s: That he is a practicing physician residing in the town of Weldon, and is well acquainted with the property of the plaintiffs described in their complaint in the above cause, and that while the health of Weldon for the past three years, away from the ditch through which the slops, filth and water flow from the privies and kitchen of the hotel owned by the defendant, has been good, the health of the locality traversed by said ditch has been more subject to fevers than that portion of said town not so traversed.” Two affidavits of the same import from Dr. A. B. Pierce are filed, and both are residents practicing in the town, while none in opposition are filed by the defendant. With this evidence of impending danger, the fact of which seems to be justified by the experience of the past, we do not see what course could have been pursued, other than to interpose and avert the consequences likely to follow the continuous use of the drain for these impurities cast upon the *49 plaintiff’s lot, at least until the nuisance shall be found to be such upon a final trial. The fact that others contribute to the mischief, cannot excuse the defendant, while the plaintiffs may have protection also against them. Sic utere tuo, ut aliemm,non leedas, is the maxim to be enforced in the case. There is no error, and this opinion will be certified to the Court below. No error. Affirmed.