State v. Erie R. Co.

• Decision Date: 18 June 1913
• Citation: 84 N.J.L. 661,87 A. 141
• Parties: STATE v. ERIE R. CO.
• Court: New Jersey Supreme Court

87 A. 141

84 N.J.L. 661

STATE

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

June 18, 1913.

(Syllabus by the Court.)

Kalisch and White, JJ., dissenting.

Error to Supreme Court.

The Erie Railroad Company was convicted of maintaining a common nuisance by the emission of dense smoke from its locomotive engines, and from a judgment of the Supreme Court affirming the conviction (84 Atl. 698) it brings error. Reversed.

Gilbert Collins and George S. Hobart, both of Jersey City, for plaintiff in error.

Robert S. Hudspeth and Pierre P. Garven, both of Jersey City, for the State.

GARRISON, J. This writ of error brings up the judgment of the Supreme Court affirming the judgment of the Hudson quarter sessions convicting the plaintiff in error of maintaining a common nuisance by the emission of dense smoke from its locomotive engines.

The facts charged in the indictment and the evidence produced at the trial together with the trial errors complained of, especially with respect to the charge of the court, sufficiently appear in the opinion of the Supreme Court. That opinion, after stating that the defendant under its charter had the right to use any sort of coal necessary for the efficient operation of its road, laid down the general proposition that for a nuisance resulting as an incident of such use, independently of negligence, the railway company was not responsible. In laying down this proposition the court below followed the case of Morris & Essex R. R. Co. v. State, 36 N. J. Law, 553, in which this court followed the case of Vaughn v. Taff Valo Railway Co., 5 Hurl, and Nor. 679, in which Chief Justice Cockburn stated the general principle to be that "where the Legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose authorized and every precaution has been observed to prevent injury, the sanction of the Legislature carries with it this consequence that if damage results from the use of such thing, independently of negligence, the party using it is not responsible." The Court of Exchequer Chamber, thus speaking through Chief Justice Cockburn, followed the decision of the Court of King's Bench in King v. Pease, 4 Barn, and Adol. 30, which was an indictment against a railway company for a smoke nuisance not distinguishable in principle or on its facts from the case now before us. In that case the judgment delivered by Baron Parke was that such incidental interferences with the rights of the public must be taken to have been contemplated and authorized by the Legislature in return for the public benefits derived from the railway, and hence did not and could not constitute a nuisance at common law.

The principle which has thus been adopted and followed by the courts of this state, notably in the case of Beseman v. Penna. R. R. Co., 50 N. J. Law, 235, 13 Atl. 164, justified the Supreme Court in saying that: "Wherever the question has been raised in this jurisdiction, negligent operation alone presents the ratio decidendi, whether it be upon an application for equitable relief against a conceded private nuisance, or in a prosecution under the criminal law upon an indictment for creating and maintaining a public nuisance; for the law is well settled that for mere incidental damage accruing by reason of the authorized and proper operation of the railroad, the company is exempt from liability upon the principle of damnum absque injuria," and "in suits for such injuries negligence is the gist of the action."

A necessary corollary of this proposition and an essential part of the doctrine as applied to public nuisances is that the negligence that will thus transform the doing of a legislatively authorized act into a common-law nuisance must be something more than the mere doing of such authorized act; i. e., there must be evidence of negligence dehors the mere doing of the act which by force of the legislative sanction is not in itself a nuisance.

Unless this be so, the doctrine in question is an empty formula under which the authority granted by the central legislative body may be nullified by judicial action confined to particular subdivisions of the state.

In the case of a railway it is not perceived how such legislative grant can be rendered effective or the road operated under it if each county through which it passes may proscribe the use of one or another of the various methods of operation in actual use upon no other evidence of negligence that that the doing of the act authorized by law creates a condition which but for such law would be a public nuisance.

I am not intimating that, with the advance of knowledge, improvements in railroad methods and equipment may not become so generally employed and their practical utility so...