Jenkins v. Pa. R. Co.

• Decision Date: 03 March 1902
• Citation: 51 A. 704,67 N.J.L. 331
• Parties: JENKINS v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

51 A. 704

67 N.J.L. 331

JENKINS

v. PENNSYLVANIA R. CO.

Court of Errors and Appeals of New Jersey.

March 3, 1902.

(Syllabus by the Court.)

Error to supreme court.

Action by Emma P. Jenkins against the Pennsylvania Railroad Company. Judgment for defendant and plaintiff brings error. Reversed.

Holt & Van Dike and Linton Satterthwait, for plaintiff in error.

Alan H. Strong and Charles E. Gummere, for defendant in error.

PITNEY, J. This was an action of tort. The gist of the plaintiff's declaration was that the defendant, in the operation of its railroad, negligently, unskillfully, and unnecessarily caused dense smoke, and noxious, penetrating, and discoloring vapors, and offensive odors, in greater quantities than were required for the legitimate and proper use and operation of the railroad, to arise and ascend near to, through, and about the plaintiff's dwelling house, situate near to the railroad, thereby rendering the house uncomfortable and unhealthy and unfit for habitation, and injuring the furniture and other personal property of the plaintiff therein contained. At the trial, evidence was introduced tending to show that smoke in great quantities, emitted from the locomotives upon the defendant's railroad, was carried to and upon the plaintiffs premises, causing substantial damage to the dwelling house and its contents. The plaintiff also introduced evidence tending to show negligent firing of defendant's locomotives, and that thereby smoke was produced, denser, darker in color, and greater in volume than was reasonably required for the proper operation of the railroad, and that, by the exercise of due care and skill on the part of defendant's employés in firing the locomotives, much less smoke would have been produced. The contention on the part of defendant was that its locomotives were properly fired, and that such smoke as had been produced was no greater in quantity and no more offensive in quality than was necessarily produced in the proper and careful operation of the railroad. Upon the question of damages the trial judge charged the jury, in effect that the burden rested upon the plaintiff to show the jury, by proof, how much of the damage she claimed to have suffered was the result of negligence on the part of the railroad company; that the evidence was in such shape that no 12 men could say how much of the damage was the result of carelessness in firing, and how much was necessarily incident to the careful operation of the railroad; that there was no way by which the jury could rightly apportion the damage, and to attempt to do so would be mere guesswork; and that therefore, if the plaintiff was entitled to any damages at all, she could recover only nominal damages. To this part of the charge, exception was taken. The jury, by their verdict, found the defendant guilty of the negligence charged in the declaration, and assessed the plaintiff's damages at six cents. Judgment having been entered thereon, the plaintiff now assigns error upon that portion of the charge just referred to.

The bill of exceptions shows that the state of the proofs was, in fact such that no 12 men could tell with accuracy how much of the damage was the result of carelessness in firing, and how much was necessarily incident to the careful operation of the road; and this for a reason that inhered in the nature of the case, and consequently was unavoidable by the plaintiff. The damage was caused by clouds of smoke proceeding from the defendant's locomotives; and those clouds were formed in part of smoke conceded to have been necessarily emitted in the careful operation of the locomotives, and in part of other smoke alleged by the plaintiff and found by the jury to have been unnecessarily emitted in the negligent operation of the locomotives. It was as impossible for the plaintiff to adduce evidence separating the unnecessary from the necessary damage, as for the defendant to split up each smoke cloud into two, label one, "Necessary," and the other, "Unnecessary," and send them separately to the plaintiffs premises. The question is whether, in a case where the proof shows that a railroad company has been guilty of a breach of duty in the respect indicated, and substantial damage has thereby accrued to an adjacent property owner, the right to...