Ft. Wayne Cooperage Company v. Page
| Decision Date | 03 April 1908 |
| Docket Number | 21,156 |
| Citation | 84 N.E. 145,170 Ind. 585 |
| Parties | Ft. Wayne Cooperage Company v. Page |
| Court | Indiana Supreme Court |
Rehearing Denied June 13, 1908.
From Miami Circuit Court; Joseph N. Tillett, Judge.
Action by Charles Page against the Ft. Wayne Cooperage Company. From a judgment for plaintiff for $ 6,500, defendant appeals. Appealed from the Appellate Court under § 1394 Burns 1908, cl. 3, Acts 1901, p. 565, § 10.
Affirmed.
Vesey & Vesey, Loveland & Loveland and Barrett & Morris, for appellant.
John S Branyan, Milo Feightner, Lesh & Lesh and Bailey & Cole, for appellee.
About one mile east of the town of Roanoke, at the south side of a public highway running east and west, and about two hundred feet east of a point where the Wabash railroad, running north and south, crosses said highway, appellant, in August, 1904, maintained a stave and heading factory, operated by steam-power. As a part of its plant, and as constituting the eastern structure thereof, was a steaming-house, sixty-seven feet long, ten feet high, and ten feet wide, parallel with and nine feet south of the highway, in which house were located nine vats for the steaming of the timber preparatory to its being manufactured. The power- and machinery house was located a few feet west and south of the steaming-house. The vats were supplied from the waste steam of the engine, which was conveyed from the latter by a four-inch, iron pipe laid on the ground, parallel with and within a foot of the north line of the steaming-house, to the northeast corner of said house, at which point it terminated in an upright stem, seven inches in diameter, standing six feet above the ground, and within eight feet of the public highway, from the top of which stem the exhaust steam from the pipe escaped at all times when not being used for the filling of the steam vats. The escape of the steam was in large volumes, and was attended with a loud, puffing noise, and when the wind was in a southerly direction the steam would float in clouds across the highway, frequently totally obstructing vision along the road. In August, 1904, appellee, having in the buggy with him one Druley, was driving eastward on said highway by said heading factory. The horse was three and one-half years old, ordinarily gentle, and well broke for driving on the public highways, though he had not been driven in the presence of engines or by the heading factory before. After crossing the railroad he trotted along at the rate of seven miles an hour. When he arrived opposite the west end of the mill he became somewhat frightened by the noise of the saws and other machinery, shied to the north side of the road, but was pulled back into the road and urged along, and when he had gone twenty-five or thirty feet farther east a cloud of steam suddenly burst from the top of said stem and floated across the road. At this the horse instantly became frightened and unmanageable, and broke away to the side of the road, inflicting severe injuries upon appellee.
In addition to the foregoing facts it is alleged in the first paragraph of the complaint that said clouds of escaping steam and said great noise were calculated to frighten horses of ordinary gentleness driven by persons along the highway, which fact was well known to the defendant; that the defendant wrongfully, unlawfully, and negligently maintained said steaming-house and steam-pipe "at the place and in the manner before set forth." It is further alleged in this paragraph that the plaintiff was driving a quiet and gentle horse along the highway, and driving in a careful and prudent manner, and without knowing of or apprehending any danger, and when within thirty feet of said upright steam-pipe, a large cloud of steam suddenly burst forth from said pipe, with a loud and frightful noise, and floated over the highway immediately in front of the plaintiff's horse, whereby said horse became frightened and beyond the plaintiff's control.
In addition to the facts averred in the first paragraph, it is alleged in the second paragraph that "when thirty feet west of said steam-pipe a great quantity of steam was, by the defendant, suddenly, carelessly and negligently emitted from said pipe, with a puffing sound, and formed a dense cloud of steam which was carried over said highway by the wind immediately in front of the plaintiff's horse, which caused the horse to take fright." It is averred in this paragraph that the facts alleged constitute a public nuisance.
The first paragraph seems to be based on the negligent construction and maintenance of the steam-pipe adjacent to the public highway, and the second, on the theory that the construction, maintenance and operation of the steam-pipe, in the position and manner set forth, constituted a public nuisance from which the plaintiff had suffered special damages. The two theories being ruled, in the main, by the same general principles, we have deemed it proper to consider the paragraphs together.
The chief objection presented is that there is no averment that either the location or manner of operation of the upright steam-pipe constituted a nuisance, and no averments from which a nuisance can be inferred. This position is not maintainable.
It is true that the business described is a proper and lawful business, and, being located on appellant's own premises, its operation cannot be a source of damages to a traveler on the highway, unless it is shown that the structures or business, or some part of one or the other, was being maintained in an improper place, or conducted in an improper manner. One may not always conduct a lawful business on his own premises as he pleases. The law requires that every one in the use and enjoyment of his property shall have regard for the rights of others, and will not allow him to set up or prosecute a business on his own land in a way that is calculated to, or in fact does, materially or injuriously affect the rights of adjoining owners, or that substantially or harmfully interferes with or injures those rightfully traveling on an adjoining highway. Wright v. Compton (1876), 53 Ind. 337; Island Coal Co. v. Clemmitt (1897), 19 Ind.App. 21, 49 N.E. 38.
In Wright v. Compton, supra, appellant was engaged in quarrying stone near the highway by the use of gunpowder. Compton, in passing by on the highway at the time a blast was exploded, was hit by flying rock and injured. In upholding Compton's recovery of damages this court said:
The principle here involved is also well illustrated by the facts and ruling in Island Coal Co. v. Clemmitt supra. In that case the company, in disposing of the slack and refuse from its mine, piled the same on its own premises, but adjoining a highway. The refuse took fire by spontaneous combustion, and, burning, slid down the heap and frightened the plaintiff's horse. In commenting upon the facts as constituting a cause of action for damages the court said: ...
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