1 Ohio Law Rep. 79 | Ohio | 1903
The defendant asked the court to charge the jury that:
“In determining the question whether thé plaintiff has suffered actual, substantial and material injuries, you may consider the ■locality of her property and that of the defendant, the nature of the business that is being conducted by the defendant, the character -of the machinery that he is using, the manner of using the property producing the alleged injuries, and 3ou may also consider the kinds of business, if any, which are being conducted and carried on in the vicinity of these properties. * * * If you find from the evidence that the' plaintiff’s property is situated in a ■populous city and in the vicinity of other shops of the same, or substantially the same, character and kind, then you may consider this fact in determining whether the plaintiff has suffered injuries of the kind named. A party dwelling in a populous city and in the vicinity of shops and factories, can not have the same quiet and freedom from annoyances that he would have in the country or in other districts. If these 'annoyances should you so find them to be such, are either trifling in their nature, or are such as under the particular circumstances of this case do not cause real, substantial and material injuries, then, SO' finding, the plaintiff could not recover.”
The court not only refused to so instruct the jury, but apparently constructed the charge on the theory that the vicinage was an element which should not be considered in the case; even going to the extent of saying that: “The term nuisance signifies anything that causes hurt, inconvenience, annoyance or damage to another. If
On the trial the defendant offered, 'and was not allowed, to prove that observations had been made in various places in defendant’s shops, and at various times, as to the noises and vibrations coming from the drop hammers, and 'also as to the noise and vibra-
Reversed.