Cunningham v. Stein

Citations

• 109 Ill. 375

Syllabus

<p>1. Evidence—on question of damage from a nuisance. On the trial oí an action on the case, brought by the owner of a brewery, against the defendant, the owner of a starch factory, located near the brewery, to recover damages for polluting the waters of a stream that ran through a part of the plaintiff's premises, by the flow of slops into the same, and for befouling the air with unhealthy and unsavory odors, arising from the using and operating the starch factory, the court allowed the plaintiff to be asked, when testifying as a witness, the difference in the sales of his beer before and after the construction of the starch factory: Held, that the question was properly allowed, the other proof showing that the flow of the slops from the sewer affected the atmosphere at the brewery, and the plaintiff’s theory being that the atmosphere so polluted affected the beer, and rendered it unsalable. Such theory was, however, not conclusive, but was open to proof that other causes, and what, affected the sales of the beer.</p> <p>2. Instruction—omitting to refer to the preponderance of the evidence. It was objected to instructions for a plaintiff, that they failed to inform the jury that they must believe the propositions of law therein laid down, from a preponderance of the evidence. The jury were instructed, on the part of the defendant, that as to each and every alleged ground of action it was incumbent on the plaintiff to make proof by a clear preponderance of evidence: Held, that the defendant had no just ground of complaint.</p> <p>3. Same—as to measure of recovery, construed. It was objected to one of plaintiff’s instructions, given in an action to recover damages for befouling and polluting the water of a stream across plaintiff’s premises, and polluting the air with unhealthy odors, from the discharge of slops near plaintiff’s premises, that it allowed the jury to assess damages for “such amount as they might find from the evidence, ” instead of limiting them to su