Central of Georgia Railway Co. v. Steverson

de GrRAFFENPIED, j. The appellee brought a suit against the appellant for f5,000 damages for creating and maintaining a nuisance near his premises, which caused annoyance and inconvenience to him and his family in his lióme. There were turn counts to the complaint. The first count charged that the nuisance was created through the negligence of the appellant, its agents or servants. The second count charged that the nuisance and the damages therefrom resulting were due to the wanton, willful, or malicious misconduct of appellant, its agents or servants. The facts are that the appellant owns and operates a railroad; that appellee’ home is situated about 120 feet, in the town of Hollins, from appellant’s right of Avay; that on or about the 2d of June a train of the appellant struck a calf, and badly crippled it, [315] on its’ right of way immediately in front of appellee’s home. Shortly afterwards the section foreman of appellant found the calf in this condition and killed it and had it buried on the right of way of the appellant at the place where it was killed. There was dispute in the testimony as to the depth of the grave in which the calf was buried and as to the amount of dirt that was placed over the calf at the time it was buried. There was nothing in the burial of the calf, however, from' which willful or wanton misconduct could be inferred. The worst that could reasonably be deduced from the place and manner of the burial was that appellant, its agents or servants, were negligent in the selection of the place or in the manner of the burial of the calf. The fact that the calf was buried negatives any idea, that it was the purpose of appellant, its agents or servants, to cause injury to appellee. About a week after the calf was buried, a dog.made a hole in the grave and exposed a part of the carcass. The grave being thus broken -into, unpleasant odors arose therefrom and, as. some of the testimony tends to show, not only caused inconvenience on that account to appellee and his family in the enjoyment of their home, but also attracted buzzards and green flies, which added to appellee’s annoyance: As appellee resided within 120 feet of the grave, he was, naturally, the first person, or one of the first, to discover this condition, and he seems to have discovered it on Thursday about a week after the burial of the calf. On that night he saw the town marshal and also the depot agent. Appellant’s office was closed, and the agent was on his way home. The agent told him that he. would have the cause of the trouble removed. Nothing was done by appellant on the next day, and on Friday [316] evening appellee again saw the agent, and the agent told him that he had forgotten the matter, hut would have it attended to. Appellee then told the agent that he would give him until the next day within which to do so. Nothing was done on the following day, hut on Sunday the section foreman was notified of the situation and, taking the testimony most strongly in favor of the appellee, the section foreman, when first informed of it, said that, he “had buried it once, and that he was not going to have anything to do with it unless he received orders to do so,” hut, later in the day, stated that he would attend to it, and, on the next day, the damage to the grave was properly repaired and the nuisance abated. We are unable, as we have already. said, from the facts to find any evidence upon which a jury could lawfully deduce willful misconduct on the part of appellant, its agents or servants. It is true that the evidence tends to show that appellant’s train and employees, including the members of its section gang, constantly passed and repassed the grave during the period covered by this litigation, and that they were neglectful of their duty to keep the right of way in proper condition; but there is nothing indicating that any act or omission of theirs was willfully or wantonly done. It is true that the section foreman manifested some impatience when informed, on Sunday, of the condition of the grave; but it is also true that during that same day he stated that he would have the damage repaired, and on the next day it was repaired. “Where there is no malice connected with the wrong complained of, or such gross negligence or oppression or fraud as amounts to malice, the compensation or amount of damages should be confined to the actual injury and its immediate effect.”—Wilkinson v. Searcy, 76 Ala. 176. [317] The court in its oral change to the jury charged the jury as follows: “A man cannot sit idly by and suffer an injury which, by the exercise of ordinary care and reasonable diligence, he can prevent, and speculate on the damages he may be able to recover.” In the present case, appellee’s annoyance was, taking the facts in the case in their most unfavorable light against appellant, caused by the negligent manner in which a calf was buried in front of his house. A modicum of good temper and a small amount of labor on the part of appellee would, have prevented all annoyance to appellee, and, under the law, it was the duty of appellee to have retained his temper and expended the labor necessary to have prevented the annoyance. It is evident that by the expenditure of less than a dollar the appellee, who Avas not a helpless woman, but a man, could have abated this nuisance, and thus saved himself the annoyance to Avhich he was thereby subjected. He stated in his testimony that one reason why he did not cover up the calf was, “that he did not Avant the job.” This may be true; but the law, nevertheless, required that he should, as the court properly charged the jury in this case, have exercised ordinary diligence and care in preventing the injury to himself and family. On this subject, the Iuav is but the application of that golden rule of conduct which requires that we shall so do unto others as Ave would have them, in like circumstances, do unto us. The appellee knew that by the neglect of the seiwants of appellant he was likely to receive, or was actually receiving, annoyance and inconvenience, and it was his duty to appellant to have minimized the damage caused by the nuisance if, by the exercise of ordinary care, he could have done so, and thus saved appellant the damage resulting therefrom. [318] The rulings of the court in the trial of the cause on the pleadings and on the evidence were in accordance with law, and in its charge to the jury it correctly stated the law as applied to the facts of the case. In awarding the $250 to appellee as his damages in the .case, the jury, taking into consideration the situation of the parties, their duties to each other under the law, and the fact that appellee, by the exercise of ordinary care, could have prevented most, if not all, of the annoyance which he suffered by reason of the negligence of appellant’s servants, allowed appellee a sum largely in excess of the amount to which he was justly entitled. Taking into consideration the circumstances surrounding the parties and the fact that the nuisance could have been abated by the expenditure by appellee of a small amount of money, we are of opinion that, in this case, the sum of $50 is amply sufficient to cover any damages which appellee is, under the facts in this case, entitled to recover of appellant and, unless the appellee shall, within 30 days from this date, remit $200 of the damages allowed to him by the jury, this cause will be reversed and remanded. PELHAM, J., not sitting.