Ft. Wayne Cooperage Co. v. Page

• Decision Date: 18 October 1907
• Docket Number: No. 5,918.,5,918.
• Parties: FT. WAYNE COOPERAGE CO. v. PAGE.
• Court: Indiana Appellate Court

82 N.E. 83

FT. WAYNE COOPERAGE CO.

v.PAGE.

No. 5,918.¹

Appellate Court of Indiana, Division No. 1.

Oct. 18, 1907.

Appeal from Circuit Court, Miami County; Jos. N. Tillett, Judge.

Action by Charles Page against the Ft. Wayne Cooperage Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.Vesey & Vesey and Loveland & Loveland, for appellant. J. S. Branyan, Milo Feightner, Lesh & Lesh, and Bailey & Cole, for appellee.

MYERS, J.

Appellee brought this action against appellant to recover damages for personal injuries sustained, while driving his horse attached to a buggy upon a highway, by being thrown from the buggy in consequence of the horse becoming frightened at the noise and escaping steam from a pipe connected with appellant's stave and heading mill. The complaint was in two paragraphs. A demurrer to each paragraph for want of facts was overruled. Answer in denial, trial by jury, verdict with answers to interrogatories, and judgment for appellee in the sum of $6,500. For a reversal of the judgment, appellant has assigned and argued three errors: (1) The insufficiency of each paragraph of the complaint to withstand the demurrer. (2) Overruling appellant's motion for judgment on the answers to interrogatories. (3) Overruling appellant's motion for a new trial.

1. Appellant argues that each paragraph of the complaint is insufficient for the reason that neither paragraph alleged that the steam pipe maintained and operated by appellant was a nuisance, nor facts showing it to be a nuisance; that the location of the mill or pipe was improper; that the highway was largely used; that the highway was improved; that the noise was unusual or unnecessary, nor that any negligence of appellant caused unnecessary or unusual noise or steam, nor that the placing of the pipe by appellant was improper, nor that appellee received his injuries by the failure of appellant to use reasonable care and skill in preventing the escape of steam. By each paragraph of the complaint it is shown that appellant at the time of appellee's injury owned and operated a stave and heading factory, located about one mile east of the town of Roanoke, this state, and, as a part thereof, owned and maintained a steam house for the purpose of steaming its manufactured product; that this house was about 10 feet high, 10 feet wide, and 40 feet long, and situate about 8 feet south, and lengthwise parallel with the public highway running east and west to and from said town; that said house was supplied with exhaust steam from the engine which furnished the power for the operation of said mill by means of a steam pipe four inches in diameter, and from the house the steam was conducted through an iron pipe of like diameter, connected with the pipe from the engine, and along the north side of said steam house and parallel with said public highway to a point at the northeast corner of the house, and then at a right angle upward about 6 feet from the surface of the ground, and there, within 8 feet of said highway, allowed to escape in great clouds and over said highway, making a loud and frightful noise as it escaped from said pipe; “that said clouds of steam and said noise were calculated to and likely to frighten horses of ordinary gentleness driven by persons along and over said highway”; that said steam escaping in clouds as aforesaid, and passing out and over said public highway, and the peculiar and frightful noise with which said steam escaped, and all the aforesaid arrangements, were well known to appellant, as well as the fact that such arrangements and escaping steam and frightful noises were likely to frighten horses of ordinary gentleness driven by persons passing and repassing along said highway; that appellee while driving over and along said public highway with a quiet and gentle horse hitched to a buggy, and driving in a careful and prudent manner, and without apprehending or believing any danger to exist, and when about 30 feet west of the point where appellant wrongfully and unlawfully and carelessly and negligently kept and maintained said steam house and said steam pipe, a large cloud of steam suddenly emitted from said pipe with a loud and frightful noise, and over said public highway and in front of his horse, frightening said horse and causing him to suddenly turn in said highway and run into a ditch and over a picket fence with said vehicle and this appellee, and into an orchard, where said vehicle struck a tree, throwing appellee out of the buggy and seriously injuring him; that appellee did everything in his power to control said horse, and was unable to do so; that the injury was caused without any fault or negligence on the part of appellee, and without any notice or warning of danger from defendant, “but that the same was caused wholly by defendant unlawfully, wrongfully, carelessly, and negligently erecting and maintaining and operating said mill and steam house with said steam pipes in the manner above set out, and causing said horse to take fright at said noise and steam as above described.” The facts are more directly and definitely stated in the second paragraph, and, in addition, it is alleged that at times the clouds of steam would be so dense as to completely obscure vision through it; that the steam so caused to escape therefrom along and over said public highway constituted a public nuisance; that his injuries were caused by the negligent, careless, and wrongful and unlawful maintenance of said public nuisance by appellant in the erection and operation of said steam house and pipe, and carelessly, negligently, wrongfully, and unlawfully causing the steam to escape therefrom by and over said public highway, etc. From this complaint it will be observed that appellant had erected and was operating a lawful business upon its own land. Its plant was maintained in close proximity to the public highway, but this fact alone would not make the establishment a nuisance, nor its erection and operation per se negligent. Wabash, etc., Ry. Co. v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696;Wolf v. Des Moines Elevator Co., 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517.

The rights and liabilities of parties to actions of this character cannot be fixed by any arbitrary rule, for the reason that they depend largely upon the conditions and circumstances of the particular case. However, one general rule most commonly referred to in this class of cases is to the effect that one may prosecute a lawful business upon his own premises so long as he does not thereby seriously affect those rightfully using an adjoining highway for travel or does not essentially interfere with the comfortable enjoyment of life or property of adjoining owners. Wright v. Compton, 53 Ind. 337; Knight v. Goodyear, etc., Mfg. Co., 38 Conn. 438, 9 Am. Rep. 406; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279;Hannem v. Pence, 40 Minn. 129, 41 N. W. 657, 12 Am. St. Rep. 717;Shipley v. 50 Associates, 101 Mass. 251, 3 Am. Rep. 346;Dygert v. Schenck, 23 Wend. 447, 35 Am. Dec. 575. It is not necessary that a party maintain an object actually in a highway in order to create a nuisance or to make him liable in damages to one injured by such object, but as said in Lynn v. Hooper, 93 Me. 46, 51, 44 Atl. 129, 47 L. R. A. 752: “A thing may be a nuisance because it interferes with or endangers public travel, although it does not of itself constitute an obstruction of the highway. An object at the side of a highway of such a character that it is naturally calculated to frighten horses of ordinary gentleness may constitute a nuisance. Elliott on Roads, 482; Cooley on Torts, 617.” See, also, Island Coal Co. v. Clemmitt, 19 Ind. App. 21, 49 N. E. 38; Wright v. Compton, supra. While a business may be lawful and the place where carried on a proper one, yet it may be so erected and operated as to constitute a nuisance (section 290, Burns' Ann. St. 1901), and the party so offending be liable in damages to one injured by its maintenance, or be liable on the theory of negligence, depending upon the facts and circumstances of the case. In the case at bar the first paragraph seems to be predicated upon the theory of a liability because of negligent acts upon the part of appellant in the operation of its mill; while the second paragraph proceeds upon the theory that appellant's negligent acts in the operation of the mill, located as it was with reference to the public highway, amounted to an obstruction to the free use of the highway, and was a nuisance. A complaint, to be good as against a demurrer for want of facts, must exhibit enough facts in law to authorize affirmative relief, and although such facts may be awkwardly stated, if they are sufficiently clear “to enable a person of common understanding to know what is intended,” the demurrer should be overruled. Section 341, Burns' Ann. St. 1901. Appellee shows that in the operation of the mill by appellant great clouds of steam were emitted within eight feet of the public highway, and within six feet of the ground which passed over the highway, and at the same time and place the escaping steam produced a loud and frightful noise, and from its location was likely to frighten horses of ordinary gentleness; that it did frighten appellee's horse, and he was thereby injured. The mill, its location, its proximity to the highway was fully described and set forth in the pleading. All of these, with the other facts stated, in our judgment warrant the conclusion that appellant was thereby fully apprised of what the pleader thereby intended, and was therefore sufficient to withstand appellant's demurrer. Knight v. Goodyear, etc., Mfg. Co., 38 Conn. 443, 9 Am. Rep. 406; Island Coal Co. v. Clemmitt, supra; Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135;Cincinnati, etc., R. R. Co. v. Worthington, 30 Ind. App. 663, 670, 65 N. E. 557, 66 N. E. 478;Grand Trunk Ry. Co. v. Ives, 144 U. S. 408,...