Garvey v. Long Island R. Co.

• Citation: 54 N.E. 57,159 N.Y. 323
• Parties: GARVEY v. LONG ISLAND R. CO.
• Decision Date: 06 June 1899
• Court: New York Court of Appeals

159 N.Y. 323

54 N.E. 57

GARVEY

v.LONG ISLAND R. CO.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, appellate division, Second department.

Action by Bernard F. Garvey against the Long Island Railroad Company. From a judgment of the appellate division affirming a judgment for plaintiff (41 N. Y. Supp. 397), defendant appeals. Affirmed.

This action was brought to recover the damages alleged to have been sustained by the plaintiff, as the owner of a dwelling house known as No. 28 Hanson Place, in the city of Brooklyn, on account of a continuous nuisance committed by the defendant, a railroad corporation, upon its own premises directly at the rear of the plaintiff's, and to restrain the further commission thereof. The nuisance was described in the complaint as follows: ‘Locomotives enter, move about in, and leave the yard to the number, during the summer, of about 200 daily, each making its characteristic noises, such as the hissing and pounding of escaping steam, the rumble of wheels, the clatter of irons, the clainging of bells, and other irritating noises. Each locomotive which enters the yard is run upon a turntable constructed in the immediate rear of plaintiff's house, making a noise as it goes on like an explosion, and shaking and jarring the plaintiff's house. Steam, smoke, cinders, ashes, and nexious and unwholesome gases are set free in the defendant's yard, and cast upon the plaintiff's premises, and into the plaintiff's doors and windows.’ The defendant, after admitting some portions of the complaint and denying others, alleged that it was a domestic railroad corporation, and that the acts complained of were done by it ‘lawfully, carefully, and for the purposes of its incorporation only.’ The justice before whom the case was tried did not fully state the facts found by him, but decided ‘that the operation by the defendant of its turntable upon its premises mentioned in the complaint, together with the general conduct of its business upon said premises, amounts to a nuisance to the plaintiff's premises mentioned in the complaint.’ No damages were found, but the defendant was enjoined ‘from the operation of such turntable, and from the conduct of its business generally upon said premises, in such manner as to amount to a nuisance.’ The operation of the injunction was suspended for about three months, ‘in order to give the defendant an opportunity to condemn the plaintiff's property, or such easement therein as it may be advised.’ On the trial it appeared that in May, 1891, the plaintiff moved into his house, No. 28 Hanson Place, to reside with his family. In the spring of 1892, the defendant, in rearranging its railroad yard, built a turntable directly in the rear of plaintiff's premises, and erected a water tower there. Prior to this, both the turntable and the water tower were from 150 to 200 feet further off. The turntable, a new variety, is a large, horizontal structure of iron, 60 feet long, swinging on a pivot in the center, and, when at rest, either end is suspended half an inch above a circular track. When an engine is run upon it, one end goes down with a ponderous blow, causing a loud noise and a heavy jar. The engines used by defendant weigh from 90,000 to 185,000 pounds each, and they are run upon the table every day to the number of at least 70 in the summer and 30 in the winter, at various hours, sometimes late at night. The ashes are dumped from the engine and water is taken by it on the same occasion that it is turned around by the table. This process occupies from five to twenty minutes, and while it is going on steam is generally escaping from the safety valve with a loud noise, and smoke and gases, sometimes from soft coal, issue from the smokestack, and, when the wind is south, penetrate the plaintiff's house. The result of the new arrangement was to centralize all these evils in the immediate vicinity of plaintiff's premises. There was evidence tending to show that the effect of the blow caused by a locomotive when it ran upon the turntable, and the end fell, was to shake the plaintiff's house from top to bottom, crack the walls, move the bed springs, so as to awaken a person lying in bed, by moving it up and down, jar articles on the tables, move the pictures, cause the chandeliers and the windows to shake, and the like. The noise was described by some witnesses as deep, something like thunder, but not so loud. Others described the vibrations by comparing them with those caused by an earthquake, and one said the noise was like an explosion of gunpowder. Still another said: ‘It seems like a heavy vibration of the earth, and moves the house. The vibration lasts sometimes longer than others. When it [the locomotive] goes on, it goes on sharp, and gives a heavy jar. * * * I know I feel it when I am lying in bed at night, mostly between ten and eleven o'clock. There is a train goes out or comes in at that time, and this sudden jar will awaken and annoy me. Accompanying that jar is the noise I have described.’ In the summer time the windows could not be kept open, owing to ashes, cinders, and smoke from the engines. The cinders spotted the clothes hung out to dry, so that they had to be rewashed, and fine ashes sifted through the windows, even when they were down, and settled on the furniture. One witness stated that the noise would awaken any one from a sound sleep, and that the vibrations had cracked the walls of her house, while another, who lived next to the plaintiff, said that the ceilings in every room in her house had cracked since the new turntable was put in. None of these defficulties were observed prior to the rearrangement of the yard and the concentration of all the agencies mentioned directly at the rear of plaintiff's house, although most of the witnesses had occupied their respective houses for years. One of the near neighbors, whose house was situated more favorably than the plaintiff's stated that she could not let the rooms in the back part of her house, because the occupants all left, stating that they could not sleep on account of the noise. Another, who lived one door from the plaintiff, testified that her inside blinds on the top floor settled so that they could not be closed, and that the doors also settled in the front area. The witnesses for the defendant minimized these results, but did not deny their existence altogether. They stated that the appliances were of the best kind, and were used in the most careful manner; but one witness admitted that the foundation of the turntable was not solid at first. At the close of the evidence both parties stipulated in open court that the trial justice should visit the locality, and inform himself, by practical experience, as to the alleged annoyances, and the record shows that he did so before making his decision. The appellate division affirmed the judgment rendered by the trial court, and the defendant appealed.

Alfred A. Gardner and William J. Kelly, for appellant.

George S. Billings, for respondent.

VANN, J. (after stating the facts).

From the evidence appearing in the record, especially when it is amplified by the view of the premises taken by the trial judge at the request of both parties, and from the nature of the findings, which have the effect of a general verdict for the plaintiff, we are compelled to assume, after affirmance by the appellate division, the existence of a nuisance upon the defendant's premises that seriously injures the premises of the plaintiff. Amherst College v. Ritch, 151 N. Y. 282, 320,45 N. E. 876. It is claimed that the judgment below cannot be sustained because no property right of the plaintiff was invaded, inasmuch as the defendant had authority for what it did in the statute which created it. That statute conferred no unusual power upon the defendant, but simply authorized it to construct and operate a steam surface railroad. It did not authorize it to construct this particular turntable, or to maintain this particular yard, or to...