108 Ky. 743 | Ky. Ct. App. | 1900
REVERSING.
Appellee is the owner of a bouse and lot on Sixth street, in the city of Louisville, and filed this suit to recover damages against appellant for injury to her property by reason of the construction and operation of its tracks and turntable for its street railway in Sixth street, near the front of her property. The street-car tracks run out southward from the northern part of the city, along Sixth street, to the turntable, which is located five feet north of appellee’s property line, and there the cars turn around and go back to the starting point. She alleged that a great many cars are run over the line, and are turned around at the turntable, almost continuously throughout the day, and a large part of the night, at intervals of only a few minutes apart, causing loud and jarring noises, and violently shaking her house; that, when turned, the cars are swept, and the filth left in the street; that the lamps are then filled with oil, and the wheels greased; that in the winter months an oil stove is kept under the turntable, emitting large quantities of noxious and unwholesome smells; and that very early in the morning, and before the customary hour for rising, a number of cars are collected at the turntable, cleaned and swept, and great and unnecessary noises made, rendering it impossible for the occupants of appellee’s house to sleep. Appellee lalleged that by reason of the above her dwelling house had become unfit to live in, and the occupation and enjoyment of her property greatly injured, for which she prayed darn-ages in the sum of $2,162. The allegations of the petition were denied by the answer.
On the trial of the case the proof was conflicting. The proof for appellee tended to show' that the.oars begin coming to the turntable about five o’clock in the morning;
It is insisted for appellant that, conceding the truth of all the testimony for appellee, the court below should have peremptorily instructed the jury to find for it on the ground that the street railway is operated under proper legislative and municipal authority, is a necessary incident of city life, and must have turn-tables in the streets at certain points in its line. We are referred to the case of Romer v. Railway Co., 77 N. W. 825, decided by the supreme court of Minnesota, as sustaining this conten-
The court below instructed the jury as follows: “The court instructs the jury that the defendant, the Louisville Railway Company, had the right to locate its turntable mentioned in the petition at the end of its tracks on Sixth street, under the authority given it by the general council of the city, and they should find for the defendan t, unless they shall believe from the evidence that the said turn-table is so constructed or operated as to materially diminish the fair market value of the plaintiffs property described in the petition by making it less desirable as a residence, because of noises, unwholesome smells, or noxious gases made by the defendant in the operation of the said turn-table.” This instruction warranted the jury in finding for the .appellee for all the damages she sustained from the construction and operation of the turntable if it materially diminished the fair market value of her property, without regard to whether the matters complained of were necessarily incidental to city life or in excess of the damage sustained by the public generally. In Fulton v. Transfer Co., 85 Ky., 640 (4 S. W., 332), and in the previous case of Cosby v. Railroad Co., 10 Bush, 294, this court recognized the rule that in cases of this character there are many things that must be endured
We think the language quoted states correctly the character of injury for which no action can be maintained. Speaking of the operation of street railways in cities, and the right of the abutting property owner to recover for the operation of such railways, this court, in the recent case of Railway Co. v. Faulkner, 45 S. W., 235 (43 L. R. A.
The proof for appellant tended very strongly to show that there was no more noise or disturbance at the turn-/