Gossett v. Southern Ry. Co.

• Citation: 89 S.W. 737,115 Tenn. 376
• Parties: GOSSETT et al. v. SOUTHERN RY. CO. et al. (three cases).
• Decision Date: 13 October 1905
• Court: Tennessee Supreme Court

89 S.W. 737

115 Tenn. 376

GOSSETT et al. v. SOUTHERN RY. CO. et al. (three cases).

Supreme Court of Tennessee.

October 13, 1905

Appeal from Circuit Court, Knox County; Joseph W. Sneed, Judge.

Three actions by C. C. Gossett and others against the Southern Railway Company and others. Judgments were rendered in favor of defendants in each case, and plaintiffs appeal. Reversed.

Pickle Turner & Kenerly and E. F. Mynatt, for appellant.

Jourolman Welcker & Hudson, for appellees Southern Ry. Co. and Condon. Templeton, Lindsay & Templeton, for appellee W. J. Oliver & Co.

WILKES J.

These three causes were consolidated and heard together in the court below against the Southern Railway Company, W. J Oliver, and S. P. Condon for damages resulting from blasting near the premises and home of the plaintiffs.

Some wordy controversy is had as to whether it is an action for a nuisance or an action on the case, with which we need not concern ourselves. The action is plainly one on the facts of the case; and the facts set out in the declaration, so far as necessary to be stated, are that plaintiff C. C. Gossett owned and occupied as a residence a certain house and lot near Knoxville. His wife and minor child, about two years old, resided with him and constituted his family. The defendant railroad located, graded, and constructed its line immediately adjoining the home and premises of the plaintiff and within a few feet of their lot and residence house. Large quantities of dynamite and high explosives were used day and night for a long time in blasting and loosening earth and rock in the construction of the road by the railroad, and by Oliver and Condon, as contractors, causing great noises and explosions, shocks and concussions, of the earth and the air, near and at the home of the plaintiff, and greatly alarming and frightening the plaintiffs Carrie and Calvin Gossett, so as to deprive them of the necessary sleep, rest, and repose, and, it is claimed, impairing the health of the said Carrie, and alarming and terrorizing said Calvin, until they both became sick and disordered in body and mind, nervous, and otherwise injured, driving them away from home, at great trouble and expense, for several months.

To the declaration in each case, the defendants plead not guilty.

It appears that the railroad was constructing its line in front of the plaintiffs' premises, and had a force of from 80 to 100 men employed at it, working day and night, for 20 hours per day. They blasted rock during the day and during the night, using both deep blasts and surface or adobe blasts. This was done in a cut about 15 feet from plaintiffs' property, and 30 feet from their house.

The house was struck by flying stones, and the weather boarding was shattered. The concussions were so great that the windows in the house were smashed, and crockery, china, fruit jars, clocks, pictures, and other personalty were broken, shattered, and otherwise injured. Carpets, mattings, and curtains were likewise injured by the dust. The work was continued from August, 1903, to June, 1904, and as a consequence of the nervous strain and fright the wife and child were rendered very nervous, and deprived of rest and sleep during the night; and about January, 1904, they were compelled to leave their home and seek refuge and temporary rest in another locality. Gossett was put to extra expense in maintaining his family away from home, and at the same time looking after his property at home.

It appears that defendants repaired plaintiffs' house, so far as physical damage was done to it by the explosions; and for these and the injury to personal property no recovery is sought, but only for the injury, physical and mental, done to the plaintiff and his wife and child, and rendering the house uncomfortable and less valuable as a residence. At the conclusion of the evidence the defendants moved the court for peremptory instructions that there could be no recovery by the wife and child, on the ground that no physical injury had been shown to them, and therefore no recovery could be had in their behalf.

The court sustained this motion, and directed a verdict in favor of the defendants in these two cases, to which action the plaintiffs excepted. He then charged the jury in the third case of C. C. Gossett against the defendants, and under that charge the jury rendered a verdict in favor of the defendants, and the plaintiffs have all appealed to this court.

It is assigned as error that the court improperly instructed the jury to render a verdict in favor of the defendants against the wife and child, and, also, that he erred in his charge to the jury in regard to the liability of the defendants to C. C. Gossett, and that he refused to give in charge to the jury certain requests made by the plaintiffs. It is also assigned as error that there is no evidence to support the verdict.

Without attempting to dispose of the assignments of error as they are made, we proceed at once to consider the several interesting and difficult questions which are presented by the record and the assignments of error, promising that we think that they have all been virtually settled by former adjudications of this court, most of which are quite recent.

In the first place the fact that the defendant is quasi public corporation, authorized by the Legislature to condemn, take, and use land for railroad purposes and works of public improvement, cannot, under the authority conferred upon it by the Legislature, exempt it from liability, even if the work can be done without negligence.

We think the true doctrine is aptly expressed in the case of Cogswell v. R. R., 103 N.Y. 10, 8 N.E. 537, 57 Am. Rep. 701: "The powers granted to such railroad corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights, and under the same responsibility as though the act were done by an individual in the exercise of such powers." See, also, case of Garvey v. L. I. R. R. Co., 159 N.Y. 334, 54 N.E. 57, 70 Am. St. Rep. 550.

The court proceeded upon the idea, and charged the jury upon the theory, that the railroad company and its contractors in constructing the railroad were engaged in what might be termed "governmental functions," delegated, first, to the railroad company by the state, and by the railroad company to its agents employed to do the work, and that, if no damage and injury were done to the plaintiffs than what was necessary to be occasioned in the prosecution of such work, then the defendants would not be liable. In other words, if the work was authorized and legitimate, then the defendants could only be made liable for the negligent prosecution of it. This is contrary to the holdings of this court, and, as we think, to the great weight of authority, though there are cases, a few of which have been cited to us by counsel, holding that, if the work is legitimate, then the only damage that can accrue to the company prosecuting the work must arise out of its negligent execution. In the case of Madison v. Ducktown (Tenn.) 83 S.W. 658, it was held that the defendants were conducting a lawful business in a lawful way, and by the most scientific and approved methods, and had made every effort known to science and experience to avoid injury to the plaintiff, but injury had resulted as a necessary consequence of the work itself; and the court further held that there was no other place to which the hurtful operations could be transferred. Still the court said that a judgment for damages in this class of cases is a matter of absolute right, where injury is shown.

This was a case where injury was inflicted by noxious fumes and smoke spreading from the furnace property over adjoining property, so as to create a nuisance and injure the adjoining property.

In the case of Cumberland Telephone Company v. United Electric Railway, 93 Tenn. 492, 29 S.W. 104, 27 L. R. A. 236, it was held, in substance, that a person, even in the prosecution of a lawful trade or business upon his own land, cannot gather there by artificial means a natural current, like electricity, and discharge it upon his neighbor with such force and to such an extent as to break up his business or impair the value of his property, without being responsible for the resulting injury.

The Fifth Baptist Church Case is a leading case upon this question; and it was there held, among other pertinent matters, that grants of privileges or powers to corporate bodies, like railroads, conferred no license to use them in disregard of the private right of others, and with immunity for their invasion.

It was there said: "The great principle of the common law, which is equally the teaching of the Christian morality so to use one's property as not to injure others, forbids any other application or use of the right and power conferred."

In the same case it is said: "The acts that a Legislature may...