48 S.E. 761 | N.C. | 1904
This action was brought by the plaintiff against the defendant for the recovery of damages alleged to have been sustained by means of a nuisance maintained by the defendant and to have the nuisance abated by injunctive process. The injury for which damages are claimed is alleged to be to the health of the plaintiff's family and himself, and the nuisance the blowing of a steam-whistle at the early hours of 4:30, 5:30 and 5:50 o'clock a. m. for the space of from two to seven minutes duration. The whistle is attached to the engine of the defendant company and its blasts are declared to be "long, shrill, shrieking, discordant, startling, terrific; awakening the plaintiff and his family, disturbing his and their sleep and seriously interfering with the reasonable enjoyment of their home and seriously impairing their health. Before the defendant had answered the plaintiff served a notice upon defendant that a motion would be made before the Judge of the (343) district for an order restraining the defendant from blowing the whistle of its engine between the hours of 9 p. m. and 6:30 a. m. Upon the plaintiff's complaint and affidavits and the defendant's affidavits the motion was denied and the plaintiff appealed.
From the plaintiff's complaint and affidavits there was evidence going to show that for years the defendant's whistle had been blown at 4.30, 5:30 and 5:50 o'clock a. m.; that the blasts were from two to seven minutes long; that they were shrill, startling, shrieking and terrific; that the night's rest of the plaintiff and several other families was broken up by the blasts of the whistle, the plaintiff's health impaired, and numbers of other families affected with nervousness. The evidence of the plaintiff further tended to show that the property of the plaintiff and others, situated as his and theirs was in respect to the mill, had depreciated in value by reason of the blowing of the whistle. The evidence afforded by the affidavits of the defendant tended to show that the blowing of the whistle did not disturb the sleep of the affiants or produce discomfort in their homes; that the blasts of the whistle were useful to the defendant in the conduct of its business; that the property in the neighborhood had not been impaired in value; that the evidence contained in plaintiff's affidavits was that of his friends and kinspeople, and that his health had not been affected by the blasts of the whistle, but was due to other causes, he being an extremely nervous and excitable man.
We think his Honor was right in refusing to grant the injunction. The blowing of whistles at factories to regulate and direct the order of work may be necessary to the proper conduct *251
of business, certainly it is not a nuisance per se. Such sounds and noises as these whistles are capable of making can become nuisances, however, and the protecting arm of the law can be invoked to prevent such. Injury to health and destruction of the comforts of one's home can be accomplished (344) by frightful noises just as well as by means of noxious and offensive odors. Dorsey v. Allen,
In the present case, however, the evidence does not satisfy us that the blowing of the whistle by the defendant amounted to a nuisance. In such a case under the old practice, that is, where the Court of Equity was not satisfied upon all the evidence, that the thing complained of was a nuisance, there would be no interference or action until the fact of "nuisance" had been established by law. Simpson v. Justice,
No error.
(345)