Bonnell v. Smith

Adams, Oh. J. i. nuisance : intention to create. I. The plaintiff asked for an instruction, which is in these words: “ The defendants, at the time they erected their house, and commenced business, are , presumed to have known the effect the use of it would produce upon the plaintiff’s ■ dwelling-house and himself and family. And they must be presumed to have intended that which they might have reasonably supposed would follow, and to have assumed the responsibility of it. [282] The erection of the slaughter-house of the defendants, if with the intention or presumed knowledge that the use of the same would result injuriously to the plaintiff, was of itself a wrongful act.” The court refused to give this instruction and the refusal is assigned as error. Upon the question as to whether an act constitutes a nuisance, it is not necessary to inquire into the intention of the person doing the act. The best intentions cannot prevent an act from being a nuisance where it otherwise is such, and the worst intentions cannot make an act a nuisance where it otherwise is not. The intention might, to be sure, be a proper subject of inquiry upon the question of exemplary damages. But the instruction does not appear to have been asked with that view, nor, under the finding of the jury that there was no nuisance, could it, if it had been so asked, be deemed material ? 2. INSXBUCtion : eyiest of witness, II. The plaintiff assigns as error the giving of an instruction in these words: “Testimony of witnesses who have no interest in the result of the suit, of equal credix bilrty otherwise, is entitled to more weight than tine testimony of interested witnesses.” The statute allows the interest of a witness to be shown, if it does not otherwise appear, for the purpose of lessening the witness’ credibility. The fact of interest, then, is to bo considered by the jury as tending to lessen the witness’ credibility. It follows, we think, that the testimony of an interested witness should be regarded as overcome by the testimony of a disinterested witness whose credibility in all other respects is equal. We cannot, therefore, hold the instruction to be erroneous. At the same time it appears to us that it would have been quite as well, if not better, to have withheld it. There is danger that a jury may too readily conclude that two conflicting witnesses are of equal credibility aside from interest, and allow interest to determine the preponderance in too mechanical a way. Absolutely equal credibility is hardly to be predicated of any two witnesses. All persons differ in [283] mental perceptions, attention and memory. They differ also in their standpoints of observation. Testimony differs in inherent probability. Tiiis every juror knows, and we think that an instruction like the one in question is as likely to mislead as to aid him. III. It is insisted that the verdict is contrary to the evidence. It seems to us that there was a full and fair investigation of all the objections urged against the slaughter-house, as affecting the plaintiff. Over seventy witnesses were examined. "Without setting out the evidence, it is sufficient to say that in our opinion it supports the verdict, and the judgment must be Aeeirmed.