Andrews v. W. Asphalt Paving Corp., 34157.

CourtUnited States State Supreme Court of Iowa
Citation188 N.W. 900,193 Iowa 1047
Docket NumberNo. 34157.,34157.
Decision Date23 June 1922


Appeal from District Court, Monona County; W. G. Sears, Judge.

Action to recover damages to residence property occupied by plaintiff, and to her personal property on the premises, and for physical suffering endured by her, and for the annoyance, inconvenience, and personal discomfort suffered by the plaintiff in her home by reason of excessive smoke, cinders, fumes, dust, and sand cast upon and into her home, and upon her personal property, by the operation of an asphalt plant erected by defendant, situated adjacent to the residence property, and operated for a period of four months. The case was submitted to a jury, which returned a verdict for plaintiff in the amount of $910.40. Judgment was rendered on the verdict, from which defendant appeals. Affirmed.Robert B. Pike and Henderson, Fribourg & Hatfield, all of Sioux City, and Prichard & Prichard, of Onawa, for appellant.

C. E. Underhill and M. W. Newby, both of Onawa, for appellee.


In July, 1919, the defendant erected an asphalt plant or mixer on the right of way of the Illinois Central Railroad Company in Onawa, Iowa, about 42 feet from the residence occupied by plaintiff, on the north and a little to the west of the house, and operated the plant for a period of about four months while plaintiff was occupying as a residence the property above described, owned by Emma Craven. The asphalt plant was erected and operated for the purpose of making a hot mixture of asphalt and sand to be used in paving streets in Onawa. A large movable crane was also operated at the plant in unloading materials for the paving. The asphalt mixer was a plant 50 or 60 feet long and some 25 feet high. It consisted of a steam plant with hoisting machinery, two large metal vats in which was boiled the asphalt, a large sand drum, and other equipment, and four furnaces in which were used four or five tons of soft coal a day. A number of men were employed to operate the plant, and some of them worked during nights wheeling and dumping coal into the bunkers, hoisting barrels of asphalt to the platforms and chopping them open, and dumping the contents into vats, where it was heated to a boiling liquid. Men also frequently worked at night in repairing machinery and in so doing hammered and pounded on same almost continually. Numerous automobile trucks during the daytime came and went every few minutes hauling the hot asphalt mixture from the plant to the street where the paving was being laid. The truck drivers, living in different parts of the town, were called to work by whistles sounded at early hours of the morning.

Plaintiff's cause of action was alleged in two counts:

(1) For damages to the real property; and (2) for damages to her household goods, clothing, growing garden, and other personal property; and for physical suffering, annoyance, inconvenience and personal discomfort suffered by the operation of the plant and machines adjacent to the premises occupied by her.

The damages to real estate she alleged were caused by the asphalt plant's being operated almost continuously both night and at day, and continually caused and gave off dense clouds of smoke, soot, asphalt fumes, cinders, ashes, and other dirt, which, during the greater portion of the time, blew, settled, and drifted upon and into the dwelling house occupied by plaintiff and her husband; and the said smoke, soot, fumes, cinders, ashes, and dirt also drifted into and were blown into the inside of said dwelling house, and soiled, injured, and damaged the wall paper and the paint and varnish on the rooms on the inside of said dwelling house, and also destroyed, tarnished, and blackened the wall paper, walls, and wood work to such an extent that the same will have to be all refinished and gone over again; and the machines jarred and shook and racked the house and caused the plastering therein to become cracked and loosened from the walls and ceiling; also employees of defendant in operating the plant and in driving trucks to and from the plant destroyed the fences on and around the premises.

Plaintiff attached to her petition an itemized statement of such damages, such as cost of paint to repaint the house and outbuilding; cost of labor in repainting the buildings; cost of wall paper; cost of material and labor to reconstruct fences; and for material and labor and replastering of house, etc.

Plaintiff demanded damages to her personal property, and presented an itemized statement consisting of damage to fruit trees and vegetables and household effects; and extra work required and done by her on account of soot and dirt sifting into the house, etc. Other items of damages were claimed in both counts, but were withdrawn from the jury by the court.

Defendant denied liability in a general denial. As an affirmative defense defendant alleged:

“That said asphalt plant and mixer and said machine were conducted and operated without any extraordinary or unusual emanations therefrom; and that the plaintiff knew long before said plant was installed and said work was commenced that said plant would be installed and said work commenced and prosecuted, and permitted said plant to be installed and the work to be commenced and prosecuted without any protest or objections whatever on the part of plaintiff or her assignor; and by said conduct on the part of the plaintiff and her assignor in not making objection or protest, defendant was induced to erect and operate said plant, and thereby plaintiff and her assignor are now estopped from claiming damages arising therefrom.”

On motion of plaintiff the special defenses freedom from negligence and the pleading of estoppel were stricken.

There was no dispute in the facts as to the erection and operation of the asphalt plant and the effect upon plaintiff's property from the operation of the plant. The only evidence offered by defendant was in support of its affirmative defense presented of freedom from negligence and estoppel. As above stated, such affirmative defense was stricken at the beginning of the trial, before the introduction of evidence began. After plaintiff had rested, defendant offered the evidence of N. P. Randic, superintendent of the plant during the period involved, who had had some 15 years' experience as superintendent of asphalt plants, to show that the plant was constructed and operated in the usual and ordinary manner. On objection of plaintiff, such testimony was excluded.

Defendant offered to prove:

“That the asphalt plant, the erection and operation of which the plaintiff complains, was commenced to be operated early in July, 1919, and prior to the time when said erection was commenced, and with the knowledge on the part of the plaintiff and her assignor of the intended erection thereof, and during the time the plant was being erected, the completion of which was not until the latter part of August, 1919, neither the plaintiff nor her assignor made any objection or protest as to the location or intended operation of said plant; and that by the knowledge of the plaintiff and her assignor, as aforesaid, and her acquiescence and her failure to object and protest against the erection of said...

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3 cases
  • Manhattan Oil Co. v. Mosby, 9847.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 12, 1934
    ...... that no notice to the defendants was required, see Andrews v. Western Asphalt Paving Corporation, 193 Iowa, 1047, 188 ...(C. C. Ga.) 151 F. 101, 105; King-Crowther Corp. v. Ashcraft, 60 Ind. App. 412, 110 N. E. 998; Missouri ......
  • Schlotfelt v. Vinton Farmers' Supply Co., 50281
    • United States
    • United States State Supreme Court of Iowa
    • June 13, 1961
    ...... We quoted this with approval in Andrews v. Western Asphalt Paving Corporation, 193 Iowa 1047, 1052, ......
  • Andrews v. Western Asphalt Paving Corp., 34157
    • United States
    • United States State Supreme Court of Iowa
    • June 23, 1922
    ...188 N.W. 900 193 Iowa 1047 MRS. ELSIE ANDREWS, Appellee, v. WESTERN ASPHALT PAVING CORPORATION, Appellant No. 34157Supreme Court of Iowa, Des MoinesJune 23, Appeal from Monona District Court.--W. G. SEARS, Judge. ACTION to recover damages to residence property occupied by plaintiff, and to ......

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