Dean v. Southern Ry. Co. In Mississippi

• Decision Date: 11 December 1916
• Court: Mississippi Supreme Court
• Parties: DEAN v. SOUTHERN RY. CO. IN MISSISSIPPI

73 So. 55

112 Miss. 333

DEAN v. SOUTHERN RY. CO. IN MISSISSIPPI

Supreme Court of Mississippi

December 11, 1916

October 1916

APPEAL from the circuit court of Leflore county, HON. F. E. EVERETT Judge.

Suit by G. G. Dean against the Southern Railway Company in Mississippi. From a judgment for defendant, plaintiff appeals.

Mr Dean, the appellant, is a resident citizen of Greenwood Miss., and in this action complains of the Southern Railway Company, the appellee, on account of the noise made by the operation of appellee's trains over and upon a certain spur or service track placed by the railway company in the city of Greenwood, near Mr. Dean's home, to accommodate the business of a large compress.

At the time this suit was instituted Mr. Dean was about seventy years old, and was the owner of a lot upon which was his residence, a servant's house, cook's house, and barn, and also a residence constructed by him for the purpose of renting to tenants. It appears that the main line of the Southern Railway Company in Mississippi was constructed in 1888 or 1889 by the Georgia Pacific Railroad Company, and ran across the northern end of block 1, which was divided into four lots, one of which, lot 4, Mr. Dean purchased in 1893 or 1894. At the time he purchased his lot there was a residence thereon, into which he, with his family, moved. His family consists of himself, his wife, his adult son, Tom, who furnished the money to pay for the property, and a granddaughter of the plaintiff. One of the houses was constructed by Mr. Dean, at a cost of one thousand dollars, after he purchased the lot. A map is referred to by counsel, but this map is not in the record, and it is difficult to determine the exact measurements in reference to the location of plaintiff's property from the spur track in question. It appears, however, that Mr. Dean's home adjoins the main right of way of appellee, and that about a year before the institution of this suit a spur track was installed by the railroad company across the main line from Mr. Dean's home; the switch or beginning of this spur track being about one hundred and fifty feet northwest of Mr. Dean's property, and projecting a distance along the northern boundary of the right of way, estimated as two hundred and fifty or three hundred yards. This spur track runs into a large compress, and was placed there for the purpose of unloading and loading cotton handled by the compress. This is a suit for damages to plaintiff's property by reason of the noise made by the cars of appellee as they are drawn in and our over this spur track. Plaintiff and his son testify that in placing cars on this side track what is known as "running switches" are made, some of the cars, when the switch is thrown, coming up on the main line opposite plaintiff's house. There is evidence that the noise is so great that plaintiff and his family cannot rest well at night, and at times cannot well hear conversation when this switching is going on. There is evidence also that the steam engine employed for the purpose of placing and taking out cars buzzes, and thereby adds to the noise complained of. Mr. Tom Dean, plaintiff's son, testifies that the portion of the spur track across the main line directly opposite the house and on the north side of the main line is about two hundred and twenty-five feet from the dwelling house.

At the conclusion of plaintiff's testimony there was a motion to exclude the evidence and to grant a peremptory instruction in favor of appellee. This motion was by the court sustained, and judgment accordingly entered in favor of the defendant. From this judgment, appellant appeals.

Affirmed.

Monroe McClurg, for appellant.

Catchings & Catchings, for appellee.

OPINION

STEVENS, J.

While the evidence on behalf of plaintiff in the court below undisputably shows that the noise from the operation of appellee's freight trains over and along the spur track complained of is at times very great, so much so that plaintiff could not sometimes sleep well at nights, and at times could not hear well a conversation in his home, we are nevertheless forced to the conclusion that under the facts of this record a case was not made out, and the action of the court below in excluding plaintiff's testimony should be approved.

The residence of plaintiff is on the south side of the right of way over which the main line of railway runs, and this residence faces south. The spur track was installed on the opposite side of the main line, north of plaintiff's property, and leads to and is made necessary by the business done by and at a large compress. This spur track in no wise invades the plaintiff's property, but is on the private right of way of the railroad. It does not run over or along any street in front of plaintiff's property. There is no complaint or proof that smoke, dust, sparks, or cinders are projected by appellee's engines and trains over and upon any of plaintiff's property. The sole ground of complaint is the noise produced by the operation of cars.

It may be conceded that noise, under some circumstances, may be so great as to amount to a private nuisance. The evidence in the instant case shows that the noise occasioned by the use of the spur track is no greater than is necessary in the operation of the trains and the doing of needed switching. Plaintiff does not complain of private switchyards installed by the railroad company. The spur track here complained of is a service track, made necessary for the depositing and taking aboard of large quantities of cotton handled by a large compress--the legitimate railroad business required by a legitimate compress business. There is no contention by appellant that this service track is unnecessary, or that there is any negligence by the railroad company, either in the selection of its engines and cars or in the way they are handled and switched at this point. The compress company had the right to call for the installation of this service track, and, if the railroad company should decline to install or furnish this track, it could be compelled to do so by the Railroad Commission. The business done over this spur track therefore is the same character of business done at the regular freight depots. The spur track was installed to serve the public generally, and the act of installation must be characterized as a public and not a private act of the railway company. The noise produced by the defendant's trains over and upon this spur track falls in the same class as the noise produced by the operation of trains over the main line of railway. Railroad trains cannot be operated without noise. A material amount of noise is produced by steam railways, street railways, manufactories, automobiles, and various other agencies employed by modern civilization. If railway trains were noiseless, then it would profit one nothing to stop and listen at a crossing. The greater weight of authority sustains the holding that any injury which is a result of noise produced by the operation of trains on main lines, even though it may at times inconvenience and irritate, is damnum absque injuria.

The legal principles contended for by learned counsel for appellant are, in the main, perfectly sound, but inapplicable to the facts of this case. It may be conceded that a railroad company is not protected by its charter in creating a private nuisance. It cannot locate its machine shops, roundhouses, coal chutes, water tanks, or private switchyards near or adjacent to private property under such circumstances as to create a private nuisance and thereby depreciate or damage private property. In the placing or construction of these conveniences the railroad company has the power of selection; its act in placing or installing these necessary conveniences must be classed as the private acts of a public corporation. In placing these conveniences it has no greater rights, of course, than any individual or private corporation would enjoy. But in the installation of a spur track like the one here complained of the railroad company has no option. It must afford the service, and in doing so it is serving the public generally. The cotton industry of the country demands compresses, and the patronizing public have a right to have their cotton transported by appellee and deposited at this compress, and taken therefrom as occasion demands. If the railroad company operates trains properly equipped and in the usual way, without negligence, the noise produced is a necessary incident to the business done by appellee as a common carrier. This distinction is clearly drawn and the doctrine abundantly supported by the leading case relied upon by counsel for appellant. Counsel relies with confidence on the case of Matthias v. Minneapolis, etc., R. Co., 125 Minn. 224, 146 N.W. 353, 51 L. R. A. (N. S.) 1017, and says in his brief that:

This case "was presented with great research and learning; the court gave the case the greatest consideration, and the opinion is of the highest order of ability."

Looking to the opinion, then, in the Matthias Case, we quote with approval the very distinction made by it and all of the leading authorities. The court says:

"And as sustaining the view herein before expressed that railroad shops, roundhouses, and switchyards like the one in question here stand on a different footing from tracks between stations, passing tracks, depots, freight-houses, and yards for receiving and delivering shipments, in respect to their location and operation being a private injury or nuisance which the law will redress, may be cited Cogswell v N. Y., etc., Ry. Co., 103 N.Y. 10, 8 N.E. 537, 57 Am. Rep. 701; Spring v. Delaware, etc., Ry Co., 88 Hun 385, 34 N.Y.S. 810; Wylie v. Elwood, 134 Ill. 281, ...