Randle v. Pacific Railroad
65 Mo. 325
Mo.
1877
Check Treatment
Hough, J.

This was an action on the case for special damages alleged to have been sustained by the plaintiffs by reason of a public nuisance charged to have been levied by the defendant.

On the 5th day of July, 1872, the plaintiffs became lessees and proprietors of a hotel, located at the northeast corner' of Seventh and Poplar streets, in the city of St. Louis, and known as the “ Clarendon Hotel.” Previous to 1870, defendant’s eastern depot in the city of St. Louis was located on the west side of Seventh street, immediately south of Poplar, defendant’s track terminating previous to 1870 at that depot. After 1870 and during that year particularly, the defendant laid a track eastwardly upon and along Poplar street down to the levee, a distance of about seven blocks. The hotel building of the plaintiffs is built along Seventh street for its front,- and along Poplar street for its depth. In their petition the plaintiffs alleged that the laying of this track by defendant along and upon Poplar street was unlawful and without authority ; that *331after tbe laying of such track upon said Poplar street, defendant immediately began to use suck track, and continually up to tbe commencement of this action did use such track by running thereon heavy trains of ears and engines, and using engines in propelling such trains, whereby defendant did make and create obnoxious soot, smoke and smell, and rendered the occupation of plaintiffs’ hotel premises greatly uncomfortable ; that the running of such trains, which was done with great force and violence, did cause the ground under and around said hotel of the plaintiffs to vibrate and to so shake and move said building that the occupation thereof became dangerous to plaintiffs and their guests in said hotel; that defendant did, during said period of time, allow trains to stand upon this track, thereby obstructing said Poplar street and incommoding the plaintiffs’ use thereof; that all these acts of defendant made and created such use of said Poplar street, by defendant, a dangerous and insufferable nuisance ; that plaintiffs by reason of the premises lost a large number of guests, and were prevented from earning large profits in their said hotel business, to their entire damage in the sum of twelve thousand dollars.

Defendant’s answer was a general denial of the allegations of the petition; then a plea of defendant’s charter privileges, as contained in the act incorporating the Pacific Railroad, approved March 12, 1849, and amended March 1, 1851 and February 18,1864 ; then an averment that this extension of defendant’s track over Poplar street was a necessary spur or switch, and that such track and the use thereof by defendant had begun before plaintiffs became proprietors of the hotel in question.

These allegations of the answer were all put in issue by plaintiffs’ reply. The cause was tried by the intervention of a jury. Testimony was adduced by the plaintiffs tending to support the allegations ' of their petition, as to the.inconvenience, discomfort and loss suffered by them from the operation of the road. Defendant offered no tes*332timony, but at tlie close of the plaintiffs’ evidence offered an instruction to non-suit plaintiffs, which instruction was refused by the court. Defendant then offered the following instruction, which the court gave and plaintiffs excepted: “ The court instructs the jury that under the evidence, the plaintiffs are not entitled to recover more than nominal damages.” No other instructions were asked or given. The jury gave plaintiffs a verdict for one cent. Plaintiffs in due time filed a motion for a new trial, assigning as error, that the court upon the trial of the cause excluded competent and relevant testimony offered by plaintiffs; that the court erred in giving instruction as to the measure of damages, and that the court erred in its rulings as to the damages which it was competent for the plaintiffs to prove in this case. This motion was overruled by the court, and plaintiffs excepted to such ruling, tendered their bill of exceptions, which was signed, and took the case by appeal to the general term of the St. Louis Circuit Court, where the judgment of the court at special term was affirmed. Plaintiffs again excepted and have brought the case here by appeal.

It will be observed that the petition proceeded upon the theory that the defendant had constructed its track on Poplar street without any lawful authority whatsoever. The action was for a nuisance created by malfeasance,, and not for a nuisance resulting from misfeasance. It was stated by plaintiffs’ counsel at the argument of this cause, that for the purposes of this appeal, the right of the defendant to construct and operate its road on Poplar street might be assumed by the court. This admission, we think, disposes of the case. It being conceded that the defendant had authority to construct and operate its road on Poplar street, it could not be chargeable with thereby levying a nuisance, unless it had either constructed or operated its road in an unlawful manner. A railroad track laid upon the street of a city by authority of law, properly constructed and operated in a skillful and careful manner, is not, in law, a nuisance. Danville R. R. Co. v. Common*333wealth, 73 Penn. 38. “It is a legal solecism to call that a public nuisance which is maintained by public authority.” Harris v. Thompson, 9 Barb. 350. There was no allegation in the petition, nor was there any proof that the defendant’s road was improperly built or carelessly used.

Plaintiffs contend, however, on the authority of Fitch v. P. R. R. Co., 45 Mo. 322, that when they have established the injuries complained of, the burden of proof is upon the defendant to show that such injuries are the necessary and unavoidable consequences of the lawful operation of the road. That was a case where sparks from the defendant’s engine set fire to and burned plaintiff’s cornfields and fences. The court there took judicial notice of the fact that if an engine were properly constructed and prudently used, it would not scatter fire along the track, and held that when fire was so scattered, the jury would be warranted in inferring that there had been some neglect, and that to rebut such reasonable inference, the defendant., should show that the best machinery and contrivances were used to prevent such a result, and that careful and competent servants were employed. That case is put upon peculiar grounds, and is an exception to the general rule, that he who avers negligence must prove it. Wharton’s Evidence, section 360. We certainly cannot be expected to take judicial notice that a steam locomotive may be operated without creating “ soot, smoke and smell,” or that a train of cars, even when carefully propelled, thereby will not cause the ground to vibrate or shake adjacent buildings. The very opposite might more appropriately'be expected of us. But neither the Eitch case nor any other case which has come under our observation, will authorize a party who seeks to recover damages for the doing of a lawful thing in an unlawful manner to recover without either averring or proving such misfeasance. In the Eitch case negligence was expressly averred. In the case at bar misfeasance was neither alleged nor proved.

It is insisted, however, that as the verdict of the jury *334for nominal damages was based upon an instruction asked by tbe defendant itself, and there was no motion by it for a new trial, or in arrest, the defendant cannot now be heard to question its correctness, and such verdict is conclusive in this court of the existence of a cause of action such as was set out in the petition, and this point being thus established, that the only question which this court can now consider is whether the measure of damages was properly declared. This position has been forced upon our consideration with much ingenuity and great persist-ency, but it is, in our opinion, utterly untenable. The verdict of the jury is for many purposes undoubtedly conclusive. The defendant cannot avoid it, and indeed does not seek to avoid it. But on an appeal by the plaintiff to set the same aside, it does not preclude this coui’t from an examination of the whole case presented here, in order to ascertain whether the plaintiffs have been injured by that verdict. Nor does it pleclude the defendant from asserting against the efforts of the plaintiffs to set the same aside, that they are not wronged thereby, but on the contrary have obtained more than in strictness they were entitled to, and that on the pleadings and evidence they were really entitled to nothing. "We perceive no sufficient reason for disturbing the verdict, and the judgment of the circuit court at general and special term will therefore be affirmed.

Judges Sherwood and Napton concur. Judges Norton and Henry not sitting.

Aeeirmed.