« PreviousContinue »
It is defendant's claim that the village of Richmond is situated in an extremely level tract of land, where drainage is very difficult, that no running creek, stream, or water exists in the vicinity of said village, that said village of necessity has no sewer system, or any system of drainage into which water-closets should be drained, nor has it ever had or adopted any plan of drainage whatever, and that practically its only drains consist of open ditches, or gutters, on the sides of the streets, constructed for the sole purpose of surface drainage. The defendant further claims that it has never, at any time, permitted any person to connect any privy, vault, sink, or other source of filth with any of said open drains or gutters. Defendant claims that the only covered drains within its corporate limits are a county drain running through the northern and western portion thereof, constructed of 10 or 12-inch crock and portions of the roadside ditches, or gutters, on several of its streets that have been tiled by it for short distances. Defendant further claims that, as a matter of fact, no privy, vault, or water-closet has ever been connected with any drain within its corporate limits, except in the instance in which several citizens were found to have connected privies with said county drain, and in that instance the citizens were proceeded against in court and compelled to cut out said connection, although one of the alleged offenders was, at that time, president of said village. Defendant further claims that the southeastern portion of the village, lying south and east of the Grand Trunk Railway tracks, is naturally very low, and that the site of the school in said village, situated on Howard street, is a particularly low spot. Defendant further claims that the natural drainage of that portion of the village is through a natural water-course in a northeasterly direction to the town line road between Richmond and Lenox, and thence easterly along said town line road, and that for over 40 years a ditch of sufficient size to carry away all of the water that came to it has been in existence along the north side of said road, carrying said water to the east to an adequate outlet beyond the limits of Macomb county, and that a ditch has existed for more than 20 years on the south side of said highway which ran to a point about 60 rods east of plaintiff's premises, where it crossed the road through a culvert into the north ditch. Defendant claims that the plaintiff's premises are situated in the line of said natural water-course, at the lowest portion thereof, on the
south side of said town line road in the township of Lenox, outside the eastern limits of the said village of Richmond. That previous to 1903 the principal portion of the water from that part of the village just mentioned drained into a ditch on Howard street, and thence into the ditches on the town line road. That prior to 1903, a swale extended across plaintiff's land and onto adjoining property. That in 1903 Ferdinand Springborn, who owned 20 acres adjoining plaintiff on the west, constructed a ditch upon his premises, draining a portion of this swale and carrying the water to the town line ditch on the south side of the road, and that at or about the time of the construction of this ditch Springborn, who was then overseer of highways in the district in which both plaintiff's land and his own were situated, with the consent of plaintiff and at the suggestion of her husband, moved a then existing culvert crossing the town line road in front of plaintiff's premises to a point about 225 feet to the west. That as a result of the digging of this ditch, a large portion of the water from the swale was taken from the rear part of plaintiff's premises and carried to the town line ditch in front of her place. At about the time of the completion of this ditch by Springborn, the defendant village caused to be cleaned out and deepened the ditches from the schoolhouse property on Howard street to Lenox, and thence along Lenox, Seymour, and Davis streets to a ditch then existing across lands of one John Schock, to the east corporation line of the village, and there connected the same with the Springborn ditch, thereby more thoroughly draining the section of the village in the vicinity of said school premises. That in 1896 said Ferdinand Springborn erected a hotel known as the "Lenox Hotel," and constructed in the rear thereof a cesspool, into which he emptied the contents of the water-closet in said hotel. This cesspool was constructed of plank, was 9 feet square and 11 feet deep, with no bottom but the earth, which at that place was gravel. That an overflow pipe four inches in diameter, the entrance to which was covered by a wire screen with one-quarter inch meshes, entered the cesspool opposite the intake pipe and 1 feet from the top. This overflow pipe was about 125 feet long and ran to the rear of Springborn's premises. Defendant further claims that it appears that said cesspool was disinfected by the use of chloride of lime and copperas. Defendant insists and claims that it never authorized or gave permission to, in any form or manner,
connect said cesspool with the drain on Howard street, or in any other drain or ditch in said village, and that said village never had knowledge that said cesspool or said overflow pipe therefrom was connected with its drains, and that no official of said defendant village was ever notified that any connection existed or was claimed to exist between said cesspool and any of its drains until the spring of 1905, when plaintiff's husband, George Wendt, informed O. B. Evans, then president of the village, that he claimed this cesspool injured him. It does appear that plaintiff complained to Dr. Black, then president, in 1904, that the water from the village was contaminating her well, and in June, 1905, she complained to President Evans that her well was contaminated, that she had no water to drink, and that she wanted her premises connected with the village system of waterworks. Defendant insists that there has never been any claim or notice to the village prior to the commencement of this suit that the plaintiff was made sick and injured by odors or smells from any nuisance in front of her premises caused by any fault of said village. It is defendant's claim and theory that the sickness, pain, and trouble from which she suffered has been in no manner or form the result of any fault on the part of the defendant, and it is further the claim of the defendant that no sewage or filth was ever deposited in front of, upon, or adjacent to, the plaintiff's premises from the Springborn cesspool, or any other source within the limits of said village. It is the defendant's claim that if any filth or sewage was ever deposited in front of plaintiff's premises from which odors or stench arose, that the filth came from plaintiff's own premises, and that if plaintiff's sickness came from or was caused by unsanitary conditions surrounding her house, it came from the naturally unsanitary condition of the premises she lived upon, aggravated by plaintiff's own negligence in permitting water to stand under her house, her own privy to drain through an open ditch to the front of her premises, the slops from her house to accumulate in a hole close to her well, and the barn, pigpen, etc., to drain to the front of the house."
This statement is about as long as the charge given and is practically a statement of counsel's argument. Moreover, it contains many statements of fact which were in dispute and which it would have been error to give. A
judge should, and generally will, give instructions applying the law to any theory of prosecution or defense that is in the case, which is all that should be asked in a case of disputed facts.
We have often criticised unfavorably such requests as this. There was no error in refusing to give this request. Fisher v. People, 20 Mich. 135; People v. Marion, 29 Mich. 31; People v. Hubbard, 92 Mich. 327 (52 N. W. 729); Westra v. Westra, 101 Mich. 528 (60 N. W. 55); People v. Parsons, 105 Mich. 188 (63 N. W. 69).
Contributory Negligence. Defendant's eleventh request was not given. It follows:
"(11) That plaintiff cannot recover if her trouble was due to her own fault, or if by reasonable care she could have protected herself and avoided evil results from the alleged nuisance."
The court charged the jury that defendant claimed that plaintiff's illness and injury were caused by the foulness of her well, cellar, and premises generally, and also that she could not recover if they should find that—
"Plaintiff's premises were kept in an unsanitary condition and materially contributed to the creation of the alleged nuisance and to plaintiff's injury, then your verdict will be for defendant."
Our attention has not been called to any evidence indicating that by reasonable care she could have protected herself or avoided the effect of the alleged nuisance, nor is the brief any more illuminating upon the subject. If it refers to a duty to keep her own premises in better condition, it was sufficiently covered by a denial of recovery, if such condition contributed materially to the injury. That was fully as favorable a charge as the defendant was entitled to on that subject.
Notice. We are of the opinion that the court's instruction upon the subject of notice was sufficient.
Damages. Several assignments relate to the subject of damages. We find nothing in these or some other as
signments not specifically mentioned by us which should cause us to reverse this cause. As it is, we have referred to some assignments, to which there is little, if anything, more than an allusion in the brief of counsel. A careful pointing out of the precise point and a clear reason for the claim of error are of much assistance to the appellate court. While we do not discuss at length some of these, we have examined all and endeavored to give them careful consideration.
We find no error, and the judgment is affirmed.
BIRD, C. J., and OSTRANDER, MOORE, and STONE, JJ., concurred.
In a suit to obtain an accounting of securities given by a decedent to defendant, in which complainant claimed rights by virtue of a prior gift from deceased, his father, testimony of both parties relating to matters equally within the knowledge of deceased was incompetent.
2. JUDGMENT-RES JUDICATA-GIFTS.
The judgment of the Supreme Court, in a case involving the mental competency of deceased to execute a will, and alleged undue influence of defendant in securing its execution (In re Shepard's Estate, 161 Mich. 441 [126 N. W. 640]), is not res judicata of the question whether valid gifts were made by testator to his sons of securities claimed by defendant to have been transferred as a revocable, testamentary disposi tion.
A gift inter vivos, to be valid, requires a gratuitous and abso