Court of Appeals of Kentucky.
Jan. 14, 1897.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by Thomas Bolton against the Louisville & Nashville Railroad Company for damages.
From a judgment in favor of plaintiff, defendant appeals.

This action was brought by appellee to recover of appellant damages alleged to have been done on account of dead animals being put and insufficiently buried by servants of the latter near the residence of the former. The lower court instructed the jury as follows: "If the jury believe, from a preponderance of the evidence, that the defendant, by its agents, so buried a steer or horse near the dwelling house of plaintiff that foul and obnoxious stenches and smells arose, polluting the air in and around plaintiff's said dwelling house, and that same was done wantonly or maliciously, they will find for plaintiff such damages as they may deem right, not exceeding two hundred and fifty dollars for each. If, however, they should believe that the burying was done simply in such a negligent manner as to cause such smells, and not from malice and wantonness, they will find for the defendant." The evidence shows the acts complained of were done against the protest of appellee, in such wanton manner and under such circumstances as precludes this court from believing or deciding the verdict of $250 is excessive, or was rendered by the jury through passion or prejudice. Really, the instruction was more favorable to appellant than the law and facts proved authorized; for appellee would have been entitled to recover compensatory damages upon proof of the acts alleged and consequent injury, and upon showing, as we think was done, that it was wanton or malicious, he was entitled to punitive damages, which were in the instruction denied him. How much it would have cost appellee to cover with dirt that part of the dead animals left by the agents of appellant exposed was immaterial, because it was their duty at first to have so buried it as to prevent noxious and offensive stench, and their failure to do so rendered appellant liable in damages.

Judgment affirmed.

Ky.App. 1897.


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