186 Pa. 604 | Pa. | 1896
Opinion by
In the year 1888, and for years prior thereto, the plaintiff, Gavigan, was the owner of a house and lot on Penn avenue in the city of Scranton. At about that date, the defendant purchased lots and erected tanks and warehouse for the storage of carbon oil and gasoline on adjoining lots; the storage plant was about 240 feet from plaintiff’s residence. The oil and other illuminants stored there were not refined on the premises, but elsewhere, and shipped to defendant in car tanks for storage and distribution to customers. The oil was piped from the car to the storage tanks, then drawn into barrels for delivery. Tlie defendant had in the building an engine of twenty-five horse power, with boiler and stacks; the engine was used for forcing the oil from the car into the storage tanks; the boiler furnace was fired by anthracite coal. The plaintiff alleged that the odor from the oil and gasoline made the occupation of his house extremely uncomfortable, producing nausea; compelling him to close the windows in hot summer nights in order to secure sleep ; preventing him from occupying a porch on one side of his house; and that his health was thereby injuriously affected. He further alleged that waste oil was permitted to percolate through the earth into the ditches and sewers, saturating the soil near the house, thereby aggravating his annoyance from the proximity of the oil tanks and storage warehouse. He therefore brought suit for damages. The defendant denied that any oil escaped, or that way odor proceeding from the plant was sufficient to injure health or even cause discomfort. At the trial there was much evidence on both sides, and much of it contradictory. The court submitted it to the jury, instructing them that if they found the operations of defendant affected the comfort and health of plaintiff, and
The weight of appellant’s complaint in these assignments of error go to a denial of plaintiff’s right to recover at all. First, he argues that defendant was engaged in a lawful business, which it managed in a lawful way, therefore it is not answerable to others for damages trifling or annoying in their nature, and which are a necessary incident of the business. We concede this to be the law as announced in many opinions of this Court. The burden was on the plaintiff to show that his injury was real and substantial, and not a trifling annoyance, such as was an incident of a lawful business. On this point the evidence was quite contradictory; the plaintiff’s tended to show that the oil from the tanks and oil house percolated the ground between them and plaintiff’s house so profusely that it interrupted work on a new sewer the city was constructing, and further, by a number of witnesses, that the stench near the plaintiff’s house was almost beyond endurance, and this because of the situation and proximity of plaintiff’s property. On the other hand, defendant called witnesses whose evidence tended to show the odor was but trifling; some of them, employees of this and other oil plants, rather seemed to think, instead of being obnoxious, it was pleasant and beneficial. Whether it was a nuisance, and the damage therefrom real and substantial, the court could do no other than submit, on the evidence, to the jury. The defendant’s plant was not a nuisance per se; whether it was a nuisance at all depended wholly on the proof; whether plaintiff’s evidence established the fact could not be determined by the court. To establish that fact it was not necessary he should prove the business of defendant was carried on recklessly, or was not properly managed. It was sufficient to show that defendant selfishly carried on a lawful business in a populous neighborhood greatly to plaintiff’s injury. It comes under that line of cases commencing with Pottstown Gas Co. v. Murphy, 39 Pa. 257, where it was held that the question was not one of negligence or no negligence, but of nuisance or no nuisance. The whole subject is so thoroughly discussed in the master’s report, affirmed by this Court in Evans v. Fertilizing Co., 160
Second, appellant alleges that plaintiff’s injury was not distinguishable from that suffered in common by others in the same neighborhood. This was also a question, on the evidence, for the jury. We need cite no authority for the familiar proposition, that a public offense may, on the facts, be a private wrong. The defendant, if plaintiff’s evidence be believed, permitted its oil or refuse to percolate the earth adjoining his residence, and to run into his cellar; the stench thereof so affected his comfort and health as to be intolerable; this injury, by reason of the relative situations of the oil tanks and dwelling, and the proximity of the latter to the former, was peculiar to tlie plaintiff. It is directly within tlie ruling in Dennis v. Eckliardt, 3 Grant, 390, where the maintenance of a shop by a tinsmith and sheet iron worker made it impossible for a nearby householder to enjoy his home without danger to his health. As to the objection that evidence was admitted of matters transpiring after the suit was brought, it is sufficient to say that it was not offered as a ground for recovery, but only to show tlie character of the nuisance, which was precisely the same then as for years before. Its effect was limited by the purpose of the offer, and the careful ruling of tlie court, which strictly confined it to the purpose.
Appellant further complains that the charge was inadequate on the measure of damages. The court said to tlie jury more than once that the plaintiff must have shown an actual substantial injury, either to the use of the property, to his health or physical comfort, and if they did not so find, their verdict should be for tlie'defendant; but, if they should find for the plaintiff, tben they should be careful in estimating the damages; that they could allow nothing for injury to the real estate, as such, for there was no testimony to warrant such allowance ; that in considering injury to the reasonable use of the property, and the effect upon his health, and his actual physical discomfort, they must use their best judgment and soundest discretion in deciding what amount the plaintiff was entitled to, if anything. In a different class of eases, we have held more than once, that such meager instruction on the measure of damages is inadequate, but, owing to tlie peculiar nature of the injury here complained
There is nothing in the numerous assignments of error of sufficient merit to require further notice. All are overruled, and the judgment is affirmed.
