Eller v. Koehler, 1 Ohio Law Rep. 79

Eller v. Koehler

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 *82the thing done causes either of these in any degree, the person creating it must be charageable for the consequences.” This is a too literal interpretation of a very old definition of nuisance; for it has always been the law that in order to subject one to an action for nuisance the injury must be material and substantial. It must not be a figment of the imagination. It must be tangible. In Columbus Gas, etc. Co. v. Freeland, 12 Ohio St., 392, this court settled this question for this staté in the following definite resolution : “What amount of annoyance or inconvenience will constitute a nuisance, being a question of degree, dependent on varying circumstances, can not be precisely defined.'” This is not only contrary to the instruction given by the trial judge, but it also affirms a principle which is of much importance in determining the questions arising in this case. In holding that what constitutes a nuisance can not be comprehended in an all-inclusive definition because of ever varying circumstances which may make that a nuisance in one case which is not one in another, this court merely embodied in terse phrase the universal experience of the courts. Only conduct which is a nuisance per se at 'all times and under all circumstances a nuisance, although there are some lawful trades and modes of using property, which, by reason of unavoidable noxiousness and offensiveness, are prima facie nuisances. But the fact that a certain business is prima facie a nuisance does not relieve the complainant of the necessity of proving that the business is in fact a nuisance and that he has sustained an actual and substantial damage therefrom. It scarcely needs to be pointed out that the circumstance of contiguity will enter largely into such an inquiry, along with, other facts and circumstances. This rule applies to the full extent in cases in which damages are claimed from noise or vibration of machinerjq in the conduct of a perfectly lawful business, in an ordinarily careful manner, on premises adjoining these of the complainant. “In determining the question of nuisance from noise or vibration reference is alwajs to be had to the locality, the nature of the trade or use of the property producing it, the time during which it exists, the intensity of the noise and the effects produced thereby. Ho definite rule can be given that is applicable to every given case, as each case must necessarily stand by itself, and be determined by a jury with reference to the circumstances peculiar to itself, etc.” 2 Wood *83on Nuisance, Secs. 638, 639. Whether it be a case of injury to real property, or a case of personal annoyance or inconvenience, or of interference with, the comfortable enjoyment of one’s property, or whether the question bo as to the existence of a nuisance, or as to the extent of the alleged injury, or as to whether the defendant’s act caused the injury, 'and though the inquiry be before a chancellor or a jury, the contiguity of the alleged nuisance to the plaintiff’s property and the nature of the vicinage is always a pertinent circumstance to be considered. The matter of locality may be of much or little weight in arriving at a conclusion, nevertheless the parties have the right to have the controversy heard and determined with all the light that locality may throw upon it. The mutual interests of urban populations require this. Tor example, if one unnecessarily erects, maintains and operates a noisy, smoky machine shop, or rolling mill, in the midst of a section of a city or town already wholly given up to residences, possibly many of them of elaborate design and great cost, there would be less excuse.for the offender in so using his own property, than if he had chosen a place which had been wholly or in part given up to trade and manufactures. All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand one who becomes a resident of a trading or manufacturing' neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable. At any rate, we hold that the trial judge should have instructed the jury as requested; and for this error, as well as the error of the circuit court in affirming the judgment of the court of common pleas, the case is reversed.

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-*84tioiis caused by railroad trains -which pass along by the defendant’s buildings at about the same distance as from the plaintiff’s buildings, and that the noises and vibrations coming from the railroad trains are many times greater than those from the operation of the hammers in. question. We think that this testimony ought to have been admitted, not to apportion the damage between the defendant and the railroad company, but because it would tend to show that the alleged injuries resulted, not from defendant’s hammers, but from the railroad trains. These observations were taken from points nearest the sources of noise and vibration in the hammers and equally near the railroad tracks with plaintiff’s buildings.

Reversed.