126 Iowa 659 | Iowa | 1905
Lead Opinion
The claim made by plaintiff for damages is predicated upon the theory that defendant was negligent in the matter of the use and operation of its elevator, and the engine therein located, thereby creating a nuisance, and that his injury was the proximate result thereof. The right to recover upon the claim as thus made is put squarely in issue by the motion to direct a verdict. . The doctrine is well settled that it is not negligence per se to establish, in nearby proximity to a public thoroughfare, a factory, shop, or other industrial plant, in the necessary and reasonable operation of which loud or discordant noises are produced. The, demand of the present day conditions are such that the establishment and operation of such plants not only subserve the convenience of our people, but, in the larger part, they- are matters of necessity. Thus in a recent case it is well said:
It certainly cannot be said to be per se negligence to 'erect and operate a sawmill within sixty feet of a county road.*663 If this be not true, then it would be hazardous to erect any manufacturing establishment on a highway or public street, because, if a horse should become frightened, and injure some one, then, the owners or proprietors would be liable to damages therefor. * * * To hold that the erection of a sawmill or a manufacturing establishment near a public highway or street is per se negligence would be to circumscribe the business affairs of life, and retard the progress of The age. The usual noises which attend the operation of machinery in mills and manufacturing establishments situated on public highways and streets are such to which the traveling public must submit!
Goodin v. Fuson, 22 Ky. Law, 873 (60 S. W. Rep. 293). On the other hand, it is to be said that the traveling public is entitled to make free use of highways and streets, and an adjoining property owner has no right to so use his property as to interrupt or interfere with the exercise of such right by creating or maintaining conditions unnecessarily dangerous, either in the way of producing unusual noises calculated to frighten horses ordinarily tractable and subject to control, or otherwise. Parker v. Union Woolen Co., 42 Conn. 402; Smethurst v. Ind. Cong. Church, 148 Mass. 263 (19 N. E. Rep. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550) ; Island Coal Co. v. Clemmitt, 19 Ind. App. 21 (49 N. E. Rep. 38). Such, as we think, is also the doctrine of the cases cited and relied upon by counsel for appellant, wherein is involved the liability of a railway company for damages where a team becomes frightened and runs away as the result of the sudden noise incident to the escape of steam from a standing locomotive. Louisville, etc., Ry. v. Schmidt, 134 Ind. Sup. 16 (33 N. E. Rep. 774) ; Scaggs v. Railway, 145 N. Y. 201 (39 N. E. Rep. 716) ; Howard v. Railway, 156 Mass. 159 (30 N. E. Rep. 479).
The basic principle upon which tíre doctrine of all the cases is bottomed is found in the maxim old as the books —■ in substance, that no man shall make use of his own property in such manner as to unreasonably interefere with the en
For the error in taking the case from the jury and entering judgment against plaintiff upon an instructed verdict, the judgment must be reversed, and the cause remanded for a- new trial.— Reversed.
Rehearing
Supplemental opinion on rehearing.
Wednesday, February 15, 1905.
Appellee has submitted a petition for rehearing, which, having been fully considered, we agree must be overruled. We think it proper to say, however, in explanation of the original opinion, and in view of a possible new trial, that we are not to be understood as holding that the law imposes upon one operating a gasoline engine the abstract duty of adopting any particular method of muffling -the sound of the exhaust, or, for that matter, of employing any method whatsoever. The question is one of negligence, in any event,' and, as bearing upon this, the method used, if any, and the sanction which has been made of such use in the practical experience of others, are matters material to be considered. From such consideration it follows, also, that the mere fact ■that a device adopted, and which proves ineffective, in the sense that it does not wholly destroy the sound of the exhaust, is not of itself sufficient to establish negligence.
Further, and in respect of the third subdivision of the original opinion, we are to be understood as holding merely that the evidence in the record before us is sufficient to establish the way upon which plaintiff was traveling as a public thoroughfare, and that plaintiff had the right to use the samé as such. Accordingly we are not called upon to determine
With these explanations, our former opinion is adhered to.