Campbell v. Metropolitan St. R. Co.

• Decision Date: 22 July 1889
• Citation: 9 S.E. 1078,82 Ga. 320
• Parties: CAMPBELL v. METROPOLITAN ST. R. CO.
• Court: Georgia Supreme Court

9 S.E. 1078

82 Ga. 320

CAMPBELL v. METROPOLITAN ST. R. CO.

Supreme Court of Georgia

July 22, 1889

Error from city court of Atlanta; VANEPPS, Judge.

Geo. T Fry and F. A. Arnold, for plaintiff in error.

Haygood & Douglass and E. W. Martin, contra.

SIMMONS J.

Campbell brought his action for damages against the defendant in the city court of Atlanta, and alleged in his declaration, in substance, that he was the owner of a certain house and lot of Fraser street, in the city of Atlanta, which house had been occupied by him for five years past as a residence; that the defendant, within the present year, had constructed and was operating a street railroad on said street; that the western rail of the track of said railroad was laid within 13 inches of the curb-stone on the petitioner's side of the street, and in front of his lot; that the location of said railroad so near the curb-stone and sidewalk in front of the petitioner's property had totally destroyed the comfortable and safe occupancy of said property as a family residence; that the cars on this road are drawn by animal power, and begin running daily at 6 o'clock A. M., and continue to run until 10 o'clock P. M.; that the cars pass the house going to and from the city every five minutes between the hours aforesaid, and often as many as four, five or six cars follow in trains, one immediately after the other. This unceasing passage of cars so near the entire front of the petitioner's property effectually cuts off all safe entrance to or exit from the front of said property to any kind of vehicle. Before the locating of said track the petitioner could always have his family supplies delivered in wagons in front of his door, or through the front of his lot in his premises; but since said track was located he has been at great inconvenience and great danger to life and limb to himself, his wife and children and servants, and has been compelled to have all such articles delivered on the opposite side of the street, and has been compelled to cross said street and receive from the delivery wagons the articles aforesaid. For the same reasons he cannot safely stop a buggy or carriage at the curb-stone in front of his house for the purpose of receiving or discharging the members of his family or his friends, but is compelled to stop such vehicles on the opposite side, where they must cross the railroad track to enter or leave his premises, and thus expose them to the danger of being run over by said cars, and to the heat, cold or rain. The petitioner further alleges that to each street-car there are attached two horses or mules, with bells suspended from their harness, which are constantly ringing that this, together with the clatter of the animals' feet on the stone pavement between the rails, and the clatter and rattle of the car-wheels, creats such a noise and confusion as to take from him and his family every pleasure and comfort of their home, and that there is no rest or sleep for either the sick or well members of his family between the hours aforesaid. He further shows that the rush of all these cars and animals passing his door often produces a blinding cloud of dust, greatly to the discomfort of his family, and that the dust and dirt settles upon the floor, walls, windows, and door, outside and inside of his house, and upon the carpets curtains, beds, and clothing of his family, greatly to his and their annoyance and discomfort and his injury and damage; that all of said discomforts and annoyances, injuries and damages to health and property, and dangers to life and limb, are actually in existence, and are tangible, real, and permanent in their character, and are occasioned solely by the defendant's having constructed said railroad in the manner and at the place it did, and the operating of said road as herein set forth. The defendant demurred to this declaration, whereupon the plaintiff amended as follows: "The plaintiff amends his petition, and says (1) that the street on which said street-car line is located is a very narrow street, not more than 19 feet between the curb-stones on the sidewalk, and was unsuited to the purpose for which the defendants have appropriated it; (2) the defendants moved their street-car track from a broader street, only one block away, to its present location; (3) when the defendants were preparing to lay down their track on said street, the plaintiff protested against the track being laid down so near his premises, whereupon the president of said defendant company ordered the track to be laid as close as it could be laid to plaintiff's property, in order that the plaintiff might be taught that he was not the boss in that case; (4) plaintiff shows that his property is damaged in the sum of two thousand dollars, by reason of the laying down and operating of said street railway in the manner specified in the original declaration, and that this injury is special to the plaintiff, the public at large not participating in said injury; (5) that, in bringing their cars into the center of the city, the defendants often double their teams in front of Campbell's property, the same being on an up grade, and often drive their horses and mules under the lash, causing the animals and mules to plunge, rear, pitch, and jump upon the sidewalk along...