Harless v. Workman, 12010

• Decision Date: 07 June 1960
• Docket Number: No. 12010,12010
• Citation: 145 W.Va. 266,114 S.E.2d 548
• Court: West Virginia Supreme Court
• Parties: V. E. HARLESS et al. v. Earl WORKMAN et al.

Page 548

114 S.E.2d 548

145 W.Va. 266

V. E. HARLESS et al. v. Earl WORKMAN et al.

No. 12010.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1960.

Decided June 7, 1960.

Syllabus by the Court.

1. In an action to recover for damages caused to the plaintiffs' property by dust resulting from the nearby operation by the defendant of a coal loading tipple and a coal crusher, the trial court did not err in submitting the case to the jury on the basis of the defendant's negligence, rather than upon the basis of a nuisance.

2. 'A verdict of a jury, based upon conflicting evidence, will not be disturbed by the court unless such verdict is against the preponderance of the evidence or is without evidence to support it.' Point 3 Syllabus, Morris v. Nelson, 136 W.Va. 722 .

J. Howard Hundley, Charleston, for plaintiffs in error.

Shaffer & Shaffer, H. G. Shaffer, H. G. Shaffer, Jr., Madison, Donald E. Jarrell, Whitesville, for defendants in error.

CALHOUN, Judge.

On June 28, 1957, V. E. Harless and Kathleen Harless, husband and wife, instituted this action of trespass on the case in the Circuit Court of Boone County against Earl Workman, Edward Toney and Henry Buster Radcliff. At the conclusion of the plaintiffs' testimony in chief, the court directed a verdict in favor of defendants Toney and Radcliff. Trial of the case continued thereafter against Earl Workman as sole defendant, resulting in a jury verdict for the defendant, upon which verdict the court entered judgment on September 11, 1959. A writ of error to such judgment was awarded by this Court, and subsequently the plaintiffs were granted leave to make a motion to reverse the judgment of the trial court.

The declaration, as amended, alleges that in April, 1941, plaintiffs became the owners of certain lots of real estate and the dwelling previously erected thereon in Glenview Subdivision of the Town of Racine, in Sherman District of Boone County; that thereafter in 1946 defendants Toney and Radcliff purchased a tract or parcel of real estate located about 150 feet from the plaintiffs' property and separated therefrom by a road and by railroad tracks; that thereafter Toney and Radcliff erected on their tract or parcel of real estate a ramp or tipple and other necessary equipment for the purpose of loading coal into coal cars on the adjacent railroad tracks; that coal was thereafter dumped into such tipple from trucks and thereby conveyed to the railroad cars; that thereafter, about the year 1952, defendants Toney and Radcliff by oral agreement leased such coal loading facilities to defendant Workman; that thereafter Workman added a coal crushing machine, which was used and operated along with the tipple and other coal loading equipment until the time this action was instituted; that as a result of such coal crushing and loading activities, 'fumes, coal dust, soot, impurities and other particulate matter and atmospheric contaminants, so produced and created, are negligently permitted and allowed to escape and to be discharged and dispersed into the air and are thereupon air borne and cast upon the properties both real and personal of the plaintiffs;' and 'the defendants have negligently and unlawfully by reason of said operation created and produced and maintained a nuisance adjacent to plaintiffs' property in that they have by reason of said operation created, produced and permitted to escape from their said plant and their property large quantities of particulate matter, fumes, dust, very fine coal dust, smoke, soot and other impurities and atmospheric contaminents, which are air borne and carried by the wind to and through the dwelling house of the plaintiffs and deposited upon all their property, and by reason thereof said substances so created and permitted to escape by the defendants as aforesaid and airborne, circulates through plaintiffs' dwelling and settles upon their rugs, furniture, draperies, floors, walls, exterior walls, porches, clothing, roofs, food, fixtures, and appliances greatly damaging all the real estate and personal property owned by the plaintiffs and has so damaged their said personal property to such an extent that it is practically worthless and destroyed, and thereby plaintiffs have been forced to expend large sums of money to keep their dwelling habitable and to get rid of the said airborne matters by constantly washing, sweeping and cleaning the same from the premises and property of the said plaintiffs and also by reason thereof plaintiffs have suffered great mental anguish and discomfort and peace of mind and their health has been seriously affected and impaired.'

It is the contention of the plaintiffs that the pleadings and proof disclose that the coal loading and coal crushing facilities, as used and operated by the defendants, resulted in a nuisance, and that the defendants should be held liable to the plaintiffs, irrespective of negligence or due care, for damage thereby caused to the plaintiffs' property.

Defendant Workman, on the other hand, contends that the coal loading and coal crushing equipment and facilities, as operated by the defendants, did not amount to a nuisance and, therefore, that there can be no liability on the part of the defendants, or any of them, in the absence of negligence. The trial court submitted the case to the jury on the basis of negligence and due care, rather than upon the basis of a nuisance. This action of the trial court in thus submitting the case to the jury is basic in all assignments of error made in this Court, and in all assignments of error urged in the trial court in support of the motion to set aside the verdict and grant the plaintiffs a new trial.

Photographs taken on May 8, 1957, introduced as exhibits before the jury on behalf of plaintiffs, portray portions of both the interior and the exterior of plaintiffs' dwelling. Such photographs disclose that which has the appearance of considerable accumulations of dark colored dust. Plaintiffs and numerous other witnesses called in their behalf testified that coal dust from the defendants' loading facilities covered the exterior of the plaintiffs' dwelling, including porches, and that such dust also found its way into the interior of the dwelling, covering furniture, dishes and other items of personal property therein. Such testimony indicated further that coal dust settled in a similar manner upon the plaintiffs' lawn and garden. Without undertaking to state the evidence in detail, it may be said that the testimony of plaintiffs and their witnesses detailed an annoyance from coal dust in a manner and to a degree sufficient to render life to the plaintiffs in their home quite unpleasant. It has been pointed out by defense counsel that among the eighteen witnesses who testified in behalf of the plaintiffs, all, in addition to the two plaintiffs, were relatives of plaintiffs, or neighbors similarly situated who admitted that they contemplate similar actions against the defendants for recovery of damages.

On the other hand, eighteen witnesses, including the three defendants, testified in behalf of the defendant Workman. In reference to damage caused to the plaintiffs and others similarly situated by coal dust from the defendants' coal loading and crushing facilities, the testimony of these defense witnesses is in sharp conflict with that of plaintiffs and their witnesses. The general effect of the defense testimony is that testimony in behalf of plaintiffs relative to the coal dust is not warranted by the facts; that the dust from defendants' coal loading and crushing facilities is not abnormal in volume for a coal mining community such as Racine; and that the coal dust in the atmosphere in the Glenview Subdivision comes primarily from coal cars on the nearby railroad, coal trucks on the public roads and from nearby public highways and streets, particularly Indian Creek Road. This road is beyond the railroad tracks from the home of the plaintiffs, and passes under the defendants' loading tipple. Plaintiff Vergil E. Harless testified that the ramp is 159 feet from plaintiffs' front porch.

While there was much other testimony of a similar nature, the testimony of Porter Snodgrass, a deputy to the Sheriff of Boone County, was reasonably typical of defense testimony relative to the Indian Creek Road. A portion thereof was as follows:

'Well, from the bridge down past that coal ramp the dust is about three to four inches deep all over the road when it is a dry time. It just seems as if you would practically black out on the road the way the dust is. A lot of times I have got after an automobile and them old boys would drive out and get in that dust and dodge me. You couldn't tell which street they went in and they would hide from me. When you get to the first street that turns up the hill I would have to stop they would be so much dust. They would laugh at me--about getting away.'

Roscoe Payne, another deputy sheriff, gave similar testimony.

In 1946, defendants Toney and Radcliff built an open ramp from which coal was dumped directly from trucks into railroad cars. Subsequently a tipple was constructed, equipped with a hopper or bin into which coal was dumped from trucks. Still later the coal crusher was installed in the bottom of the bin, and crushed coal was conveyed by a conveyor belt through an enclosed chute into railroad coal cars. Defendant Workman testified that the market for 'mine run' coal became so limited that it was necessary to obtain a crusher to 'size' the coal in order to obtain a market for it.

The defendant introduced testimony designed to show precautions taken and observed by him to minimize the dust problem. The crusher itself is covered by a 'steel house'. The hopper was constructed of sheet iron 'surrounded by brattic cloth' to contain the dust. The chute through which the coal is conveyed to the railroad cars was enclosed. An open pit for stockpiling coal was discontinued. Calcium...