Elliott v. Tallassee Power Co.

Yarser, J.

Plaintiffs complain that the issues submitted were prejudicial and that the court ought to have submitted the issues they tendered. The issues submitted by the court not only followed the pleadings, but present the questions arising when a public nuisance is alleged with special and peculiar damages to individuals.

McManus v. R. R., 150 N. C., 655 ;

Pedrick v. R. R., 143 N. C., 485 .

The issues arise on the pleadings (Geddie v. Williams, 189 N. C., 333 ;

DeLoache v. DeLoache, 189 N. C., 394 ), and when the plaintiffs allege a public nuisance they cannot successfully complain that the court submitted issues in exact accord with the pleadings.

Issues concern both plaintiff and the defendant; they have mutual rights therein, and it is not error to submit an issue which follows the *65 allegations, if the allegations are otherwise sufficient in law to raise an issue which is either the cause of action or an integral part thereof.

As to the form of the issues, they are sufficient if they allow both parties to introduce all pertinent evidence and apply it fairly.

DeLoache v. DeLoache, supra.

The plaintiffs have alleged definitely a public nuisance, not only affecting the public, but they allege special and peculiar damages involving a physical interference with both their personal and property rights. The law is searching and adequate to afford an injured person ample redress. Equitable or legal remedies, or both, will be used, if necessary, to afford complete relief. Of course, in case of a public nuisance interfering only with a public or common right, an action by an individual will not lie; but if this public nuisance is an invasion of private right and causes injury, annoyance, and discomfort to one or more persons, which may come within the sphere of its operation, then a suit at the instance of an individual will lie for damages or abatement, or both, as the nature of the proof may warrant.

McManus v. R. R., supra; Mfg. Co. v. R. R., 117 N. C., 579 ;

Cherry v. Williams, 147 N. C., 452 ;

Pedrick v. R. R., supra; Baleigh v. Hunter, 16 N. C., 12 ;

R. R. v. Baptist Church, 108 U. S., 317 ;

Powell v. Furniture Co., 34 W. Va., 804 ;

District Attorney v. Ellen B. R. R. Co., 16 Gray, 242 .

Plaintiffs alleged a public nuisance and special and peculiar damages; it was, therefore, incumbent upon them to establish, not only the public nuisance, but the special and peculiar damages, in order to recover.

The trial court did not require the plaintiffs to carry a burden heavier than they alleged as a basis for recovery. The charge of the court below is an able and clear statement of the law. The court was careful to allow the plaintiffs an opportunity to submit' all competent evidence to the jury as to the nuisance alleged and the damages alleged, and to apply it fairly.

Every right of the plaintiffs has been carefully guarded and preserved. The charge is fully sustained.

Pruitt v. Bethell, 174 N. C., 454 .

Plaintiffs excepted because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses’ testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled in explaining the testimony. The charge shows plainly that the court was careful to apply this rule to use of the pictures offered by either side, and when the charge is considered contextually, it appears that the court was cautioning the jury not to consider pictures not in evidence.

*66 When the ruling in the admission of the pictures and the charge of the court are considered together, we are of opinion that the principle announced in Dobson v. Whisenhant, 101 N. C., 645 ;

Morse v. Freeman, 157 N. C., 385 ;

Burwell v. Snead, 104 N. C., 118 ;

Hoyle v. Hickory, 167 N. C., 619 , has not been violated, but has been upheld.

Plaintiffs further except because the court read to the jury from Rice v. R. R., 174 N. C., 268 , as to malaria and its infection into the human system by the female Anopheles mosquito.

We do not think it was proper to read to the jury from an opinion of this Court, either in the argument of counsel or in the charge of the court, for the purpose of establishing a fact or a theory in an inductive science (Huffman v. Click, 77 N. C., 55 ). Plaintiffs’ exception shows no prejudicial error, for that the excerpt so read to the jury is in exact accord with the theory ujion which the case was tried by both plaintiffs and the defendant, and is in strict harmony and support of plaintiffs’ allegations as to the cause of the malaria.

It appears from the evidence, and the jury has evidently so found, that the road complained of was not obstructed beyond the defendant’s right so to do, according to legislative authority and its agreement with the supervisors who had charge of the same.

There are other exceptions to the admission and to the rejection of evidence. None of these show prejudicial error.

Upon the whole record it appears that the jury has determined a pure question of fact. , The charge of the learned and careful judge who tried the case below affords no ground for just complaint. It is a clear, adequate, and definite statement of the law. Therefore, there is No error.