Simonetti v. Carlton

1. Nuisance 1005(3) — Findings on Conflicting Evidence. Where evidence was in sharp conflict, refusal of trial court to grant a new trial on ground that verdict was contrary to evidence will not be disturbed. &wkey;>For other cases see same topic and KEY -NUMBER in ail Key-Numbered Digests and Indexes

Appeal from Circuit Court, Jefferson County; Charles W. Ferguson, Judge. Action by J. T. Carlton against D. Simonetti for damages for maintaining nuisance. Judgment for plaintiff, and defendant appeals. Count 2 of the complaint is as follows: The plaintiff claims of the defendant $1,000 as damages for that plaintiff is now, and has been for several years preceding the filing of this suit, the owner and occupant of the premises at No. 723 on Charles street in Birmingham, Ala., and said premises are used by the plaintiff as a residence for himself and his family and said property is located in a residence district of the city of Birmingham. . Plaintiff avers that, within the past 12 months •next preceding the filing of this suit, the defendant has used and maintained a stable or barn wherein he keeps horses and other animals in close proximity to plaintiff’s said residence, and that said stable or barn has been in an unsanitary condition during the period of time aforesaid, by means of which divers, noxious, and offensive odors, vapors, fumes, smells, and stenches, on the several days and times aforesaid, rose, issued, and proceeded from the said barn or stable, and entered into and spread and. diffused themselves over and' upon, into, through, and about, plaintiff’s said residence and premises, and ■ the air over, through, and about the same was thereby greatly filled and impregnated with the said noxious and offensive vapors, fumes, smells, odors, and stenches, and was rendered, on the said several days and times aforesaid, and became and was, and still is, corrupted, offensive, unwholesome, unhealthy, and uncomfortable, and the plaintiff has thereby been and still is greatly annoyed and incommoded in the use, possession, occupation, and enjoyment of said dwelling house and premises. •Plaintiff avers that said stable or barn is within less than 30 feet of the windows in said dwelling house on the side next to said stable or barn, which windows are necessary to the proper ventilation of said dwelling house, and that many times plaintiff has been compelled to close said windows in order to keep the fumes arising from said stable or barn from entering plaintiff’s house. Plaintiff avers that by reason and as a proximate consequence of the defendant using and maintaining said stable or barn in a dirty, filthy, and unsanitary condition, plaintiff has been forced to breathe the noxious and offensive odors and stenches arising therefrom, and plaintiff’s wife was made sick with fever, thereby causing plaintiff to lose the services of his said wife for a long time, and to incur great expense for doctor’s bills and medicine in and about the treatment of his said wife. And plaintiff further avers that, by reason of and as a proximate consequence df the defendant using and maintaining said stable or barn as aforesaid, plaintiff’s said property has greatly decreased in value, and said property been injuriously affected and hindered the plaintiff from selling the same for a fair and reasonable price, and plaintiff has been deprived of the comfort, enjoyment, and use of his said house and home and has suffered very great mental and physical pain and suffering, all to his damage in the sum aforesaid; hence this suit.