156 S.W.2d 857 | Ky. Ct. App. | 1941
Affirming.
Noise is the subject matter of this opinion. The judgment is for $500 for damages to property by the operation of an electric sub-station consisting of a series of large transformers adjoining the home of the appellee, James P. Anderson. He acquired his property, a five-room frame dwelling, at the edge of Pikeville in 1927. The appellant acquired the adjoining lot and erected these transformers in the latter part of 1936, *503 about seven feet from appellee's fence and fifteen feet from his house. High voltage electricity is brought to the station and reduced there to a current suitable for distribution in the city. There are four transformers but only three are used at a time. Each consists in part of an iron core surrounded by a series of coils. The current is reduced by induction. The core is magnetized and demagnitized 120 times a second and this causes vibration or pulsation which produces a constant humming or buzzing. The witnesses differ as to the distance at which the noise can be heard and its effect upon them. Some say it cannot be heard sixty feet away, and others one hundred feet. But it was not denied that it is quite audible anywhere on plaintiff's property. Persons in the house are annoyed and disturbed in their conversations and sleep and, as well, in the effect such a constant vibrating noise or humming has on their nerves. It or the presence of the electricity practically destroyed the use of the radio in the home. Defendant's witnesses minimize the sound and its effect, and in expert made a test with a device called a sonometer. Sound is measured by a decible just as weight is by a pound. This instrument showed the volume to be fifty-three decibles next to the transformers and the average of three readings along plaintiff's fence was forty-four. At a point 150 feet up the street, where the witness stated the sound of the transformers could not be heard at all, the reading was forty-three. He testified as to the readings in a number of other places. On the train it was ninety; in his hotel room in Pikeville fifty-two; and in the court room fifty-six. There is evidence also that frequently during electric storms terrifying blue blazes and balls of fire flashed and loud popping sounds came from the station. But the court confined the jury to the question of diminution in the market value of plaintiff's property only by reason of the noise.
The appellant contends that no cause of action exists for mere noise which is not unreasonable or excessive in degree, or loud, discordant or jarring, and not such as to produce actual physical discomfort to ordinary, average people. Also that the instructions were erroneous in failing to require the jury to find that the hum of the transformers created a noise excessive or unreasonable in degree. The instructions predicated the *504 right of recovery of damages upon the belief by the jury from the evidence that "the noises constantly and continuously emanating from the transformers" were of "such character and degree as to produce actual physical discomfort and annoyance to a person of ordinary health and of normal or average sensibilities, occupying the home of the plaintiff on his property adjoining the property of the defendant."
There can be no doubt but that commercial and industrial activities which are lawful in themselves may become nuisances if they are so offensive to the senses that they render the enjoyment of life and property uncomfortable. It is no defense that skill and care have been exercised and the most improved methods and appliances employed to prevent such result. Wheat Culvert Company v. Jenkins,
In most of our cases involving noise as a nuisance it was accompanied by other elements; for example, a circus (Dulaney v. Fitzgerald,
In Wheat Culvert Company v. Jenkins, supra, we held an injunction was properly decreed to stop the noise from the operation of a metal culvert factory at night which interfered with the sleep of the occupants of an adjacent residence. It is true the clanging, riveting and hammering of metal plates produces a sound different in character from the steady hum or buzz of the electric machinery described in this case. In the Jenkins case the noise was loud, discordant and intermittent. Here it is interminable and monotonous. Therein lies the physical annoyance and disturbance. Though the noise be harmonious and slight and trivial in itself, the constant and monotonous sound of a cricket on the hearth, or the drip of a leaking faucet is irritating, uncomfortable, *506
distracting and disturbing to the average man and woman. So it is that the intolerable, steady monotony of this ceaseless sound, loud enough to interfere with ordinary conversation in the dwelling, produces a result generally deemed sufficient to constitute the cause of it an actionable nuisance. Thus, it has been held the continuous and monotonous playing of a phonograph for advertising purposes on the street even though there were various records, singing, speaking and instrumental, injuriously affected plaintiff's employees by a gradual wear on their nervous systems, and otherwise, is a nuisance authorizing an injunction and damages. Frank F. Stodder et al. v. Rosen Talking Machine Company,
Cases may be found where the facts were more or less analogous to those in this record in which it was held there was no cause of action for damages or basis for injunctive relief. There are at least two cases where the situation was identical with that presented here.
In Miranda v. Buffalo General Electric Company,
In Alabama Power Company v. Stringfellow,
The instruction in this case was more favorable to the defendant than the evidence warranted in that it omitted elements of a nuisance other than the noise. The jury visited the place and had the benefit of hearing the noise itself as well as its description by the witnesses. It is not to be assumed that in returning the verdict the jury ignored the prescribed condition of the instruction as to the character and degree of the noise and its effect. The jury was not liberal in its award.
Therefore, upon reasoning and authority we affirm the judgment.
Judgment affirmed.