203 F. 193 | 3rd Cir. | 1913
The plaintiff, a citizen of the state of New Jersey, brought suit in the court below against the defendant, a corporation of the state of Pennsylvania, to recover damages for injury to certain property of hers, by reason of the alleged negligence of the defendant company.
The defendant is a railroad company, chartered for the purpose of carrying on a transportation business for passengers and merchandise by means of cars and the use of locomotive engines upon its tracks.
It is charged that the locomotives actually engaged in moving trains to and from the terminal at Broad street were in part the source of this nuisance, but that a very large proportion came from a permanent, but always changing, collection of waiting locomotives in the yards of the defendant company, 600 feet away, on the open tracks and in one or more roundhouses; that in the yard there were constantly between 50 and 150 locomotives, and in the roundhouse always upwards of 40 more. The evidence shows that these locomotives, in something like the numbers charged, were constantly kept at the places named, awaiting orders to take out trains from, or standing there after delivering trains at, Broad Street Station. Here the necessary facilities were provided for reloading fuel and letting down and relighting fires. The locomotives were in the care of “-hostlers” at these waiting places, who cleaned and made them ready, by building fires, etc., for the next run. It is not denied that this parking of the engines at the end of their runs, and their preparation for taking out trains, was necessary to carry on .the large transportation business which the defendant was authorized by its charter to conduct for the public service.
It is charged, and there is evidence to support the charge, that when the wind blew from this quarter, the locality of plaintiff’s house was much affected by the smoke from these engines; that the atmosphere was sometimes clouded by it, houses discolored and paint deteriorated, flowers and other growths damaged and killed, and the interior of houses often rendered uncomfortable until all windows were closed. In fact, there is no dispute as to the axmoyance caused by this sxnoke to those living in, and in the neighboxdiood of, plaintiff’s house. That the defendant company, in the exercise of the extensive and necessary powers conferred upon it by the Legislature for the conduct of 'its business, was authorized to fire its locoxnotives for the production of steam, and keep them in the places adapted and necessary for their service, cannot be questioned, and it'is not claimed that smoke-discharged by the defendant’s locoxnotives, in the ordinary and proper operation of its business, constitutes an-offense for which any person can recover damages. But to say this, does not coxxcede the right of this defendant, or any other person, to conduct its lawful operations negligently or carelessly. If by such negligence or want of care, injury is done to others, a right of action, of course, accrues to those who have been so injured.
The proposition on which the plaintiff’s case is put is, that the defendant company has been negligent in firing these engines where they stood, and in going in and out of Broad Street Station, so as to produce an unnecessary and avoidable quantity of smoke, constituting the nuisarxce complained of. This negligexice is charged in two respects, viz., in making use of a variety of fuel on these engines while so stand
The case was heard upon the issues joined as to these charges, and, after having been submitted to the jury in a well considered charge by the learned judge of the court below, the verdict was rendered in favor of the defendant, and from the judgment upon this verdict, the present writ of error was sued out by the plaintiff. Of the assignments of error, the only one that especially challenges our attention is the second, which alleges error in the following portion of the learned judge’s charge:
‘■The plaintiff’s ease is put upon two grounds. There are two branches of it. Perhaps that is the better way to slate it. One of them is: It is said that, by the use of a different kind of fuel in the operation of these locomotives the injury complained of could have been avoided, and some evidence has been offered to you upon that subject. I have just this to say to you upon that matter. I shall not submit that question to you, because I do not think the evidence justifies me in so doing. * * * I refer to the use of anthracite coal and the use of coke. Therefore you may lay that question aside i'ronf your determination.”
As to its manner of using bituminous coal, the jury found in favor of the railroad, and that it was guilty of no negligence in that respect. But it is contended the trial judge erred in withdrawing from the jury the question, whether, in spite of this nonnegligent use of bituminous coal, the railroad was guilty of negligence in not substituting coke or anthracite coal therefor. We have given this contention the deliberate and thorough consideration which so grave and far-reaching a question demands. We are not convinced, however, that error was committed by the court’s action in the premises.
The testimony of these engineers as to the two terminals — one in Washington and one in New York — was the only testimony adduced
It was in view of the deficiency of plaintiff’s testimony and the positive character of defendant’s testimony, that the learned judge of the court below, in charging the jury at the close of the case, withdrew from their consideration the question as to the use of anthracite or coke as a fuel for the purposes stated, submitting however, to the jury the other branch of the question as to defendant’s negligence, viz., whether it had failed to use reasonable care in the management and tiring of its locomotives to prevent an excessive or unnecessary emission of smoke. As to this, there was evidence on both sides, and upon that evidence the jury found its verdict.
The question that has just been discussed is raised by the second , assignment of error. The other assignments relate to this question, but are subsidiary thereto. They are without merit and require no special consideration.
The plaintiff’s case, as set forth in the statement of claim and as
First. That by the use of a different kind of fuel in the operation of these locomotives, the injury complained of could have been avoided, and therefore that failure to use such fuel was negligent • Second. That there was negligence upon the part of the Railroad Company’s servants, in the operation and management of these locomotives, and particularly in the operation and management of the fires therein, which caused an undue and excessive emission of smoke.
It was not claimed in the pleadings nor seriously contended in argument, that defendant was liable, as for a nuisance, for maintaining its tracks, roundhouse, and terminal in the place and position in which they were maintained. Liability was based on the specific charges of negligence in using a fuel that produced an unnecessary amount of smoke, and in not using reasonable care in firing the locomotives, so as to prevent the unnecessary emission of such smoke. In this salient feature, this case differs from that of the Balto. & P. Ry. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, cited by plaintiff in error. The facts in that case were briefly these:
The church of the plaintiff below was situated on a public street in .the city of Washington and had been used as a church for many years. After its erection, the defendant company was authorized by act of Congress to lay its tracks within the limits of the city and to construct other works necessary and expedient to the proper completion and maintenance of its road. Some years after the erection of the church building and its occupation as a place of worship, the defendant erected .upon a parcel of ground acquired by it immediately adjoining the church property, and until the commencement of the suit, maintained, an engine house and machine shop, where a large number of locomotives and steam engines were housed and their fires made, and to and from which the locomotives were propelled and in which they were coaled, watered, repaired, and otherwise used. When the ground was first broken for the erection of these works, plaintiff protested to the company that they would prove a nuisance and be ruinous to plaintiff’s enjoyment of its property. The defendant company, however., proceeded to erect the works upon the building line of its own premises, within five and a half feet of the church edifice, and constructed upon the engine house 16 smokestacks, lower in height than the windows of the main room of the church; from the time of the erection and occupation of these buildings, church services were habitually interrupted and disturbed by the hammering noises made in the workshops of the company, the rumbling of its engines passing in and out of them, and the blowing off of steam, and it was alleged that in summer time, when ■ the windows of the church were open, smoke, cinders, and dust were blown from the smokestacks, through the windows, settling upon pews and furniture and soiling the clothes of the occupants, accompanied by an offensive odor which greatly annoyed the congregation. For the almost wanton maintenance of this undoubted nuisance, action was brought by the church corporation.
There is nothing in the report of the case to show that the action
“There are many lawful and necessary occupations which, by the odors they engender or the noise they create, are nuisances when carried on in the heart of a city, snch as the slaughtering of cattle, the training of tallow, the burning of lime, and the like. Their presence near one’s dwelling house would often rendía' it unfit for habitation. It is a wise police regulation, essential to the health and comfort of the inhabitants of a city, that they should be carried on outside of its limits. Slaughterhouses, lime-kilns, and tallow furnaces, are, therefore, generally removed from the occupied parts of a city, or located beyond its limits.”
In the immediately preceding paragraph, he says:
“If. as asserted by the defendant, the noise, smoke, and odors, which are the cause of the discomfort and annoyance to the plaintiff, are no more than must necessarily arise from the nature of the business carried on with an engine house and workshop as ordinarily constructed, then the engine house and workshop should be so remodeled and changed in their structure as to prevent, if that be possible, the nuisance complained of; and if that be not possible, they should be removed to some other place where, by their use, the plaintiff would not be thus annoyed and disturbed in the enjoyment of its property. There are many places in the city sufficiently distant from the church to avoid all cause of complaint, and yet sufficiently near the station of the company to answer its purposes.”
Quoting in his brief this paragraph from Mr. Justice Field’s opinion, counsel for the plaintiff in error frankly says:
“We do not lay stress npou this point, because we chose to prosecute the case before the jury on the broad contention that the defendant had been negligent.”
In the present case, we are not concerned with the legal questions discussed by Mr. Justice Field in the case above, referred'to, as to what facts and circumstances were sufficient legally to constitute a nuisance, or what defenses could be maintained against a charge of the same, but merely with the question, whether sufficient evidence had been adduced by the plaintiff, as to one branch of the negligence charged, to justify the jury in finding a verdict against the defendant, and the only question before us is, whether the learned judge of the court below properly exercised his judicial discretion in deciding that the evidence was not sufficient for that purpose.
We think the learned judge of the court below has made no mistake in this exercise of his judicial discretion, and the judgment below is therefore affirmed.
BRADFORD, District Judge, dissents.