Vandine v. Burpee

On the trial of an action to recover damages for injury done to the plaintiff’s garden and nursery, by the smoke, heat and gas, proceeding from the defendant’s brick kiln, after two gardeners, who had much experience in raising and cultivating fruit trees, shrubs and plants, had testified to the particulars of the plaintiff’s injury, they were asked by the plaintiff, “ what was the amount of damage ** caused by the injury to which they had before testified. Held, that these vtitnesses might give their opinion as to the amount of such damage.

This was an action of trespass upon the case, brought against Amos Binney and Nathaniel Burpee, to recover damages for injury alleged to be done to the plaintiff’s garden and nursery in Cambridge, by smoke, heat and gas, proceeding from their brick kilns, made and burnt in a brick yard near said garden. The defendants severally pleaded the general issue. At the trial in the court of common pleas, before Merrick, J. it appeared that said Binney and others were owners of the brick yard, and that he, for himself and as agent of his co-tenants, leased the same to said Burpee, who was in possession thereof, under such lease, at the several times of the burning of the kilns complained of by the plaintiff; that the brick yard had been used for the same purpose, for several preceding years ; that the plaintiff’s garden and nursery were begun and planted by him, after the lot of land, which constituted the brick yard, had been appropriated and used for the purpose of making bricks and burning brick kilns thereon; that in June and July 1845, said Burpee made and burnt a kiln of bricks, in said yard, containing from fifteen to twenty arches of about fifteen thousand each; and that, for three or four days, while the kiln was burning, the weather was lowery, and the wind blew strong from the northeast, so as to take the smoke, heat and gas, from the kiln, over and upon the plaintiff’s garden and nursery. The witnesses did not agree in their statements as to the distance of the kiln from the garden, “ but variously stated it o be from one hundred and twenty to more than two hundred feet.” It appeared that the garden was surrounded by a close board fence, from seven to twelve feet high. The plaintiff introduced evidence tending to show the injury to his garden and nursery, of which he complained in his declaration, and that it was occasioned by the smoke, heat and gas from the aforesaid brick kiln, while the same was in the process of burning. The defendants introduced evidence, for the purpose of showing that the alleged injury was not caused in that way, but was occasioned by other causes. This question of fact, together with the question of damages, was submitted to the jury, under instructions not objected to, and a verdict was rendered for the defendant Binney, and against the defendant Burpee, for $993 damages. The defendants, on the trial, introduced, as witnesses, Thomas Willett and Samuel Walker, two experienced gardeners, who had spent much time in raising, grafting and cultivating fruit trees, shrubs and plants, and who had examined the plaintiff’s garden and nursery, in July 1845, after the burning of Burpee’s brick kiln. They testified, without objection from the defendants, to the injury to the trees, fruit and vegetation, which they severally noticed at the lime of (heir examination, and that, in their opinion, such injury would be likely to be produced by the smoke, heat and gas from the burning of said brick kiln, in the state of the weather before mentioned. And they were thereupon inquired of by the plaintiff, what was the amount of damage, by the injury of which they had before testified. This question was objected to by the defendants, as being mere opinion as to the amount of damage ,• but the court ruled that it was admissible, and the question was put to, and answered by, each of said witnesses. The defendant Burpee alleged exceptions to the ruling of the court.