*1 aggra- recognize which that overexertion ceased. We may existing accident an constitute disease vates an pre-existing proof aggravation condi- of a prove standing ac- an sufficient alone, tion is not, ac- that its cause was an inference cident or to raise entirety, viewing the record cidental. However, overexertion, to the conclusion come we must pre- aggravated deceased’s to the deceased, unusual existing cause that it did to the extent heart disease meaning. statutory our It is an “accident” within the “accident” the circumstances that under view brought and resultant the unusual exertion about compensable injury event. constitutes view the conclusion reached view Jersey so-called the Giuba or “New our belief legis- in the first instance at least a matter rule” is pass upon applica- do not determination, lative adopt any bility the Giuba or so-called sense nor Jersey rule.” “New reversed.
Order Eagen Mr. Justice Roberts concur Justice Mr. result. Bell dissents. Mr. Chief Justice part took no in the consideration Mr. Justice Cohen this case. or decision of Dragway, Vargo Township
Bedminster Appellants. Inc. et al., *2 dissenting opinion, in which Mr. filed a Jus- Mr. Justice Cohen joined. tice O’Brien 1969. Before January 9, Argued Jones, C. Bell, J., Roberts JJ. O’Brien, Eagen, Pomeroy, Cohen, .102 for him
Claire Biehn and Biehn, Thatcher, G. with appellants. VanArtsdalen,
Donald W. him VanArtsdalen, with Pratt Garthright, appellee. &
Opinion 1969: April Mr. Justice Jones, *3 Com- of of the Court appeal This lies a decree the mon of County permanently enjoining Pleas Bucks on ground of a track the operation strip drag racing track a nuisance the constituted operation in fact. his Vargo Mary Vargo, and March, Jacob of tract a acre twenty-seven
wife owned (Vargos), County. Bucks land located Bedminster Township, the premises to At the leased the Vargos time Association Associa- Lehigh (Timing Valley Timing were the agreement the lease tion).1 Under on premises track strip the drag racing construct a track operate the was and the Association Timing plan.2 profit-sharing on a 1 corporation supplies Timing a which services Association clocks,” starting “running the as the cars
for races such ears, races, inspecting the etc. Township adopted 7, 1958, Bedminster an ordinance On June racing Township operation strip of declared which prohibited public such within nuisance to be a County Township of re The Common Pleas of Bucks limits. ground Township, on this ordinance enforce fused so, authority power any grant to do legislative lacked absent a drag strip racing The track consists a 60 foot top approximately wide black level surface feet 3,200 starting point approximately length, of which is Elephant public highway. 100 feet from Also a Road, premises nearby large parking on located áre area pit Vargos, starting owned near line, area grandstand ground a refreshment stand and a with amplifiers playing for the of music and the announce- speeds. operation ment of the races and the began Spring in the of 1960 and con- exception rainy every days, with the Sun- tinued, day April to November.3 average Sunday approximately
On the 130 to 140 compete speed cars in timed acceleration races competing with two cars at a time. Of these cars, 75% equipped are stock cars some of re- mufflers; with maining cars have no mufflers and some have modified “drag- or semi-modifiedmufflers. Some the cars are racing, for burn sters,” custom-made some which i.e., Speeds methyl up alcohol for fuel. to 196 miles “dragsters” hour have been use some recorded, parachutes stopping to aid at the end the track. operates racing only Sundays
The track itself beginning continuing about 9 :00 a.m. and loud-speaker p.m. operating until 5:00 or 5:30 with a *4 prohibit absolutely racing per a nuisance se and to to declare drag racing particular racing. Oonceding that at this track— such fact, opened might court, a not then become nuisance never — question theless, the resolution of such would held that have' experience opening track and with manner of await Holding Township operation. had not met its burden racing proving at this track time at had become fact, validity, refused to the court determine the a nuisance in Vargo Township circumstances. See: under the ordinance Bedminster, (1959). L. R. 37 Bucks Co. 10 3 approximately twenty-five on held were Sun In 1964 races days.
104 end. 10:30 a.m. until tbe races from about continually prior take on place Saturdays Practice sessions takes Each tbe races on Sundays. race start there tbe average Sunday, on and, about five minutes, Attendance minimum of 65 races. a usually are to a low 2547 persons high races varied a tbe persons. of 625 track of tbe race vicinity tbe neighborhood
Tbe with in character residential and farming primarily track. of tbe one-mile radius bouses within a about experi- located small radius are a tbe same Within milk farm a general a store, a laboratory, hotel, mental gen- in tbe of tbe residences Many junk yard. and a purposes for vacation and are weekend eral area used only. Vargo tract tbe conveyed tbe Vargos tbe Var- corporation which a family Inc.,
Dragway, At tbe time all tbe stock. owned daughter gos a the lease present proceeding of tbe institution tbe no Association Timing and tbe tbe between operated tbe track was in effect and was longer Timing with tbe assistance Vargo Dragway, Inc., diem basis. hired on a personnel Association instituted Township Bedminster On March 22, 1963, Common Pleas in tbe Court of proceedings equity Tim- tbe Vargo Dragway, Inc., against County Bucks conduct Vargos, alleging and tbe Association ing consti- track which of tbe in tbe part their after answer Upon in fact. filed a nuisance tuted enjoining entered decree nisi hearing, operating' the defendants restraining Exceptions to this decree nisi were track. of Bucks dismissed en banc County the court filed and final decree. and entered exceptions determine must whether tbe evidence Basically, manner which was this track tbe as to of record
105
operated justified tlie conclusion of the
below that
court
in
of the track constituted a nuisance
in
fact.
bear
arriving
this
determination,
mind that
ap-
of fact of
findings
the chancellor,
proved
upon
court en
this
binding
are
banc,
if
such
have sufficient
findings
sup-
evidentiary
port
the record and if the court
has not ca-
below
priciously disbelieved the
committed an error
evidence,
of law or abused its discretion.
Shapiro,
Shapiro
424 Pa.
In Ebur v.
Metal
Alloy
Wire
304 Pa.
Co.,
177, 182,
548; 24 (1910). 227 Pa. 76 A. Works, 326, 331, following inter the alia, The court below made, erevving made th of fact: “23. The noise findings them-, time tests and up. during of the vehicles chain an operating to analogous selves ‘somewhat shatter- ‘complete explosions’, saw’,..almost-‘jet-like effect, has the but no matter how described ing npise’, living of not persons; only the- enjoyment of. limiting; mile, there but at least a in immediate community, ,24. and intensity from. -The resonance of .sound three miles heard at a distance-of that it can be is such ya At strip. approximatel 25: homes from make to the noise is such as strip from the .drag mile normal on a conversation to impossible carry it out-of-doors prevent enjoyment.of to voice, tone turn without programs to television to listen activities, windows, to at to high the sound cause volume, ing on imme cattle. 26. In disturbing and is the. rattle, required the residents are. race track diate area .the quiet, reasonable in order their close windows to. Presbyterian homes. 27. At the in .their prevail may Elephant ap on Road located Deep Run, Church of the from the noise track, miles two. proximately 28. church services. to the- track disturbs cars-going op when the track is Sundays on time During increase in traffic the roads great -there is a eration, ” the track approaching highways and [as amended]. reveal, and this record reading examination Our supported of fact are fully by the findings these That the noise which emanated of record. testimony an strip racing was and annoyance from this inr near at hand but persons only not convenience track is established beyond ques- miles some tion: e province within whose rested th below, court credibility witnesses, determination
10? adjudication, inis stated: “The of the site farming primarily an to residential area devoted persons purposes. Many living immediate particu- places of area devote their homes to retreat, larly during it for vacations summer be months, respite from their to find surcease or weekends, farming occupations. engaged in normal Others are peace dairying. region defendants this vexatiously April every year to November of have quiet that entitled circumscribed the one is reasonable day enjoy especially around on the his home, reputable described A of rest. number witnesses *7 away mile in even as far as a some detail, how, property, true the their activities curtailed. It is were produced that the defendant witnesses and that there testimony intensity a of to of the was conflict as the by strip operation, traffic noise caused the the congestion, farming other the effect on activities and worthy but it of note that all of those who factors, by to were the defendant were demonstrated called relationship past either a business in or have the the present with the defendant or at other have least some or Whether not such witnesses were dis- connection. sembling sensitivity or lacked condition the accepted prevailed, testimony plain- we have of the being worthy as more tiff’s witnesses belief.” (1960), In Kohr v. 402 Pa. A. 2d 871 Weber, 63, 166 respects many in had before us a situation we similar Upholding enjoin to the instant situation. a decree operation drag strip racing ing a track in Lan County, held in we some that, caster circumstances, may prolonged and excessivenoise constitute a nuisance operation including that the in fact track, illumination therefrom, the noise constituted a Although, in fact. unlike nuisance the case Kohr, of the track illumination was not bar a matter complaint, evidence of equally noise was as strong probative in Kohr value as and the rat applies clearly ionale to the instant situa Kohr, tion. operation- principle underlying restraint strip racing this, track has been well enun by
ciated
Pa. 355,
this
Duff,
in Edmunds
(1924),
While shows a sum excess of connection with $80,000.00 improvements, construction of this track and -other Granting- they doing. took a “calculated” risk in so yet -is not nuisance se, speaks clearly emphatically record instant the effect that the of this track become has Balancing equities in fact. nuisance between rights parties, occupying that the we believe those properties adjoining neighborhood or in the of. this , paramount rights to the track are protected by equity must that the former be the. *8 enjoyment of their homes. findings court believe below is We its y
amply sustained it no record, committed b of discretion or abuse and that -not error of it did law. imprimatur Township place of belief on the wit capricious manner. in a nesses pay -The affirmed. Decree costs. Ms. Justice Opinion Dissenting Cohen: - action it has been in this determined that Since not a nuisance I se; consider the decree which we are now too broad in that enforcing it permanently “enjoined and restrained [defendants] from operating strip.” de- restraining particular cree should have been directed against aspects of the operation which in fact nuisances are rather than restricting operation. entire
Mr. Justice O’Brien joins this dissent. Appellant,
Hale, Inc. Metalweld,