Baltimore Belt R. Co. v. Sattler
| Decision Date | 12 January 1905 |
| Citation | 59 A. 654,100 Md. 306 |
| Parties | BALTIMORE, BELT R.CO. et al. v. SATTLER. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; Henry Stockbridge, Judge.
Action by George William Sattler against the Baltimore Belt Railroad Company and another. From a judgment for plaintiff defendants appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, and SCHMUCKER, JJ.
Duncan K. Brent and W. Irvine Cross, for appellants.
Oscar Wolff and A.S. Niles, for appellee.
This is an action to recover damages, brought by George W. Sattler of Baltimore City, against the Baltimore Belt and the Baltimore & Ohio Railroad Companies for alleged injury to his property, caused by smoke and unwholesome vapors discharged by the engines which are run over the Belt Railroad, and by the large amount of noise and vibration caused by such engines and the trains of the defendants. The narr. alleges "that by reason of the said discharge of smoke and offensive and unwholesome vapors upon the plaintiff's land, and by reason of the said noise and vibration as aforesaid, upon the plaintiff's said land, it is rendered far less desirable for dwelling or building purposes than it otherwise would be, the plaintiff is deprived of the profits and advantages that would reasonably inure to him from the development and improvement of his said property, and the value thereof is seriously impaired. ***" The defendants pleaded the general issue. Subsequently they asked and obtained leave to file an additional plea. It alleges that the Belt Railroad Company, in the execution of the powers conferred on it by its charter and by the act of Assembly and by ordinance of the city of Baltimore, has constructed its railroad in the manner and upon the route prescribed, and said railroad is now being operated in the execution of the powers conferred on the Belt Railroad Company by its charter the act of Assembly, and said ordinance; that the cars and engines operated over said road are all of the best modern type, and are operated in a careful manner; and that the noise, smoke, vapors, and vibration and other inconveniences complained of by the defendant result from the operation of its cars and engines in a lawful manner, and that any damage caused the plaintiff by the operation of said railroad has been caused by the necessary and unavoidable result of the operation of said cars and engines in a lawful manner. The plaintiff's demurrer to this plea was sustained, and the defendants withdrew their pleas previously filed and demurred to the narr. This demurrer was overruled, and the defendants filed a second additional plea, which, on motion of the plaintiff, was not received, whereupon the defendants refiled the general issue pleas and their first additional plea, a demurrer to which last-named plea had already been sustained. It was again demurred to, and the demurrer again sustained. During the course of the trial a large number of exceptions were taken to rulings upon the admissibility of evidence and one to the action of the court upon the prayers. The judgment was in favor of the plaintiff, and this is the defendants' appeal.
Before considering the questions that are presented by the record and relied on here, it may be proper to say that we are not called on to discuss the ruling of the court below on the defendants' demurrer to the narr., nor that relating to the plaintiff's motion ne recipiatur, because the former is presented by the demurrer which was sustained to the additional plea, and all objection to the latter was abandoned at the hearing in this court.
The first question presented arises upon the action of the lower court in sustaining plaintiff's demurrer to the defendants' additional plea. The demurrer is based upon two grounds: First, that the plea amounts to the general issue; and, second, that it asserts the legal proposition that the plaintiff is not entitled to recover damages for the injury alleged in the declaration without proof of negligence. Counsel for both sides concur in saying that the second ground of this demurrer is the main, and by far the most important, question involved in this appeal. Whether, therefore, the plea is subject to the criticism that it amounts to the general issue, and for that reason is defective, is quite immaterial, for the main question, namely, whether the plaintiff can recover without alleging and proving negligence on the part of the defendants, is also presented by the demurrer to the narr. and by the ruling of the court on the plaintiff's prayers. Briefly, then, in regard to the first ground of this demurrer. We do not think the plea is bad on the first ground relied on. Under the strict rules of pleading the defendants have a right, if they so elect, to plead specially defenses in confession and avoidance which would be admissible in evidence under the general issue, and the fact that they are so admissible does not make the plea bad. Poe's Pl. § 641; De Lauder v. Baltimore Co., 94 Md. 7, 50 A. 427. Thus in this plea the defendant says substantially: "Yes, I confess that there is smoke, and there are the other things complained of by the plaintiff; but they all necessarily result from the operation of our cars, engines, and road in a lawful manner." The plea, therefore, is a plea of confession and avoidance. McAllister v. State, 94 Md. 300, 50 A. 1046; Keedy v. Long, 71 Md. 388, 18 A. 704, 5 L.R.A. 759. Before proceeding to discuss the main question presented by the demurrer, perhaps it would be desirable for the purpose of clearness to state the facts of the case more at large than we have already done.
It appears from the evidence that the plaintiff has for many years lived at 2619 North Charles street, Baltimore, and that he is the owner of the two lots of ground, the damage to which is the basis of this suit; that one of the lots is 100 feet front on Charles street immediately south of the open cut of the Baltimore Belt Railroad, and running back 184 feet; that the other lot fronts 50 feet on Charles street, with the same depth as the first-named lot; that between these two lots there is a lot 50 feet front on Charles street, with same depth as the others just named, on which is situated the house in which plaintiff resides, but does not own; that the two lots first named, damage to which is here claimed, are used as a garden, and contain shade trees, walks, fruit trees, flowers, etc.; that there are two tracks in the open cut of the Baltimore Belt Railroad immediately north of this property, over which tracks a great number of trains pass during the day and night. The tunnel runs a little beyond the front yard of plaintiff's lot, to the north, and the smoke and the gas and the vibration are caused by the trains. The plaintiff testified, as did other witnesses, that as soon as the trains come out of the tunnel into the open cut in front of his lots they draw the smoke out of the tunnel, and it is cast upon his property to such an extent that everything is dirty and unpleasant; that the noise and vibration caused by the trains are very unpleasant. There was also a mass of testimony in regard to the injurious effects on the value of the plaintiff's property caused by the injuries complained of, which will be considered later; but the question now is whether, assuming the plaintiff's property was injured in the manner and to the extent alleged in the narr. and admitted by the plea, he can recover without showing negligence on the part of the defendants.
1. The case of Short v. Baltimore City Passenger Railway Co., 50 Md. 73, 33 Am.Rep. 298, was much relied on by the defendants. There it was held by the majority of this court that the defendant company was not liable, without proof of negligence, for damage to plaintiff's house caused by obstructing the natural flow of water in the street, due to clearing snow from its tracks; and Judge Robinson said, in delivering the opinion of the court, that the broad question was presented whether damages could be recovered irrespective of the question of negligence on the part of the railway company, and that the true test in actions of that kind by which exemption from liability is to be determined is whether in the act complained of the owner has used his property in a reasonable, usual, and proper manner, taking care to avoid unnecessary injury to others. It was upon Short's Case, supra, and the provision of our Code (Pub.Gen.Laws 1889) § 198, art. 23) that the defendants based their contention that there can be no recovery in this case without proof of defendants' negligence. The section of the Code just referred to provides that railroad companies shall be responsible for damage resulting in the killing of cattle, etc., or by fire from their engines, unless they "can prove *** that the injury complained of was committed without any negligence." Undoubtedly, if the rule laid down in Short's Case is applicable in all its breadth to this, the defendants' contention needs little more to sustain it, so far as Maryland authority is concerned, for that case declares that, if the act there complained of was lawful, and if the defendant used its property in a reasonable, usual, and proper manner, taking care to avoid unnecessary injury to others, no recovery can be had, even though damage should follow such use. The plea, the demurrer to which we are considering, alleges that the injuries here complained of are only such as necessarily and unavoidably result from the operation of the road lawfully. Let us, therefore, in the first place, examine Short's Case, in order to see what is the full scope of the rule there laid down by the majority of the court and the grounds upon which it is based; and then, secondly, to ascertain whether the...
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