325 Mass. 63 | Mass. | 1949
The plaintiffs are householders and residents in the Cherry Valley district in Leicester. The defendant carries on a trucking business in the same district. This bill in equity is brought to restrain the defendant from annoying the plaintiffs by unreasonable noises, and from trespassing on the land of the plaintiffs Sigfrid Malm and Helen Malm. The final decree, entered December 8, 1948, permanently enjoined the defendant, his servants, agents or employees, “from so using the defendant’s premises between the hours of 12 p.m. and 6 a.m. so as to cause noise to emanate therefrom so as to interfere with the ability of the plaintiffs, their families, and tenants to sleep between said hours.” It also permanently enjoined the same persons from trespassing upon the land of the Malms, and ordered the defendant to replace a boundary fence which had been broken down by his trucks. The defendant appealed. The evidence is reported, and the judge made voluntary findings of fact.
The defendant does not complain of that part of the final decree that restrains trespassing and requires replacement of the boundary fence. His attack is upon the decree with respect to nuisance.
The judge found substantially the following facts. The defendant uses large trailer trucks including one refrigerator truck. He has on his premises a building which he uses as a freight depot for loading and unloading freight, preparatory to shipping it to its destinations. His premises are used continuously, day and night. In unloading and loading freight a heavy steel plate is used as a ramp between the trucks and the loading platform. In rolling freight over it a sharp, vibrant clang occurs which is discordant and likely to disturb seriously the rest of the neighbors. He has a
In Davis v. Sawyer, 133 Mass. 289, 290, it is said, “Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance.” In Stevens v. Rockport Granite Co. 216 Mass. 486, 489, Rugg. C.J., said, “The pertinent inquiry is whether, the noise materially interferes with the physical comfort of existence, not according to exceptionally refined, uncommon or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people.” In Shea v. National Ice Cream Co. Inc. 280 Mass. 206, 211, it was said, “The defendants are entitled to a reasonable use of their property. It is plain, however, that it cannot be so used as to disturb the plaintiffs, who have a right to sleep at night in their own homes.” In Weltshe v. Graf, 323 Mass. 498, the plaintiffs were disturbed in their sleep at night by unreasonable noises from a freight terminal operated by the defendants, and an injunction was granted restraining work between eight in the evening and seven in the morning. Apart from the questions of evidence
A witness named Wentzell, called by the defendant, testified that he conducted a traffic consultation business, that he was a registered practitioner before the Interstate Commerce Commission, that he had been employed by a trucking concern for twenty years as general manager, and that.he had been consulted by the defendant with respect to setting up his business so as to comply with the rules of the Interstate Commerce Commission. He testified that he was familiar with the routes served by the defendant, and with the extent of his business. He was then asked if it would be possible to supply the service on the routes served by maintaining daylight operations only. The defendant offered to prove that the witness would answer in the negative. The question was excluded, subject to the exception of the defendant. It appeared that the defendant carries perishable goods, and the witness was asked whether the carrying of perishable goods required a twenty-four hour operation. The defendant offered to prove that the answer would be in the affirmative, but the" question was excluded, subject to his exception. These questions of evidence come here on the appeal. G. L. (Ter. Ed.) c. 214, § 25.
The exclusion was not put, nor is it supported in argument, on the ground that the witness was not qualified to give his opinion, and we think that the evidence showed that he was qualified. Muskeget Island Club v. Nantucket, 185 Mass. 303. The judge apparently did not find that the witness was not qualified, as the judge did in Murphy v. Chichetto, ,323 Mass. 11, 15, and many other cases. The exclusion apparently was based on the ground that the facts sought to be proved were not relevant to the issue of nuisance.
The law of nuisance must often be found, as in the present case, in a compromise between the interests of business and those of quiet living. Evidence is admissible to show how far the acts complained of are necessary for the carrying on
Decree as modified affirmed with costs.