Kimball v. Thompson

• Decision Date: 20 March 1947
• Docket Number: Civil Action No. 292.
• Parties: KIMBALL et ux. v. THOMPSON.
• Court: U.S. District Court — District of Nebraska

70 F. Supp. 803

KIMBALL et ux. v. THOMPSON.

Civil Action No. 292.

District Court, D. Nebraska, Omaha Division.

March 20, 1947.

COPYRIGHT MATERIAL OMITTED

Boyle & Boyle, of Omaha, Neb., for plaintiffs.

Kennedy, Holland, DeLacy & Svoboda, of Omaha, Neb., for defendant.

DONOHOE, District Judge.

George Kimball and Marion Kimball, husband and wife, have brought this action against Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, debtor, for damages from a nuisance created by the defendant. The action was commenced in the state court, and removed on the ground of diversity of citizenship. Pursuant to stipulation, the case was tried to the court sitting without a jury.

The court now makes the following special

Findings of Fact

1. Since 1934 or prior thereto, the plaintiff Marion Kimball has owned, and resided in, a dwelling house located at 1502 Yates Street, in the city of Omaha, Nebraska. The plaintiff George Kimball resided in this house from the time of his marriage to Mrs. Kimball in 1937 until April, 1942, when he entered military service. Both plaintiffs are citizens and residents of the state of Nebraska.

2. The Missouri Pacific Railroad Corporation in Nebraska is now, and was at the time of the commencement of this action, a corporation organized and carrying on business under and by virtue of the laws of the state of Delaware with its principal place of business in St. Louis, Missouri. The defendant trustee is now, and was at the time of the commencement of this action, a citizen and resident of the state of Missouri.

3. Since 1926 and prior thereto the Missouri Pacific Railroad Corporation in Nebraska has been a common carrier of freight and passengers, and has operated an extensive and busy switchyard located immediately east of the plaintiffs' house in the city of Omaha. This yard has been operated by the defendant Thompson since his appointment as trustee of the Missouri Pacific Railroad Corporation in Nebraska to effect a plan of reorganization under the Bankruptcy Law, as amended, 11 U.S.C.A. § 1 et seq.

4. This switchyard, insofar as it is operated by the defendant, is comprised of a main line track and ten tracks located immediately west thereof; the most westerly track being situated at the foot of a bluff about one hundred or one hundred twenty-five feet east of the plaintiffs' house.

5. All Missouri Pacific freight trains coming into and leaving Omaha were, during the time involved in this action, broken up and made up in this yard. Between one thousand and eleven hundred freight cars were handled there daily. The switching operations were performed by yard or switch crews using steam switch or yard engines which burned coal.

6. Fourteen separate yard or switch crews were employed by the defendant in the switchyard. Each crew worked an eight-hour shift commencing at different times throughout the day and night, to-writ: at 6:30, 7:00, or 8:00 A.M., or at 2:30, 2:45, 3:00, 4:00, 10:30 or 11.00 P.M., or at 12:00 midnight. During the eight-hour shift, each crew had a period of twenty minutes for lunch. Some of the crews had separate engines; others made so-called foot board changes, in which the crew going to work took over an engine which had been in use.

7. Pursuant to requirements of the Interstate Commerce Commission and regulations of the railroad, each engine which was continued in use through a second shift was inspected by the engineer immediately before going off duty and also by the engineer then coming on duty. These inspections took about twenty minutes and could be made only when the engine was standing still. While the inspection was being made by the on-coming engineer, his fireman shook the grates in the engine to get rid of ashes and built up the fire by adding coal. This process caused the engine to emit large quantities of smoke, soot, cinders and steam. Preparation of the engine for work immediately after the crew had its lunch produced similar results.

8. The defendant's Grace Street yard office is located on the west side of the defendant's switchyard, adjoining the most westerly track, and one block south from the plaintiffs' house. Two box cars were located on the ground a few feet north of the yard office building during the time involved in this action. These box cars were used as locker and lunch rooms by the defendant's yard and switch crews.

9. For personal convenience of the crews, and also by reason of an agreement between the railroad and certain railroad labor organizations, most of the defendant's yard and switch crews changed shifts and ate lunch at the lunch and locker rooms near the Grace Street yard office. During the luncheon period and while crews were changing shifts, engines which had been in use in other parts of the yard were brought in and left standing idle for about twenty minutes on the scale track (which is the most westerly one and the one nearest to the plaintiffs' house), or on the track just east of the scale track.

10. The plaintiffs in this action do not claim damage or injury by smoke, soot, cinders or steam from engines spotted at the Grace Street yard office and lunch and locker rooms, or from engines in operation and moving in the defendant's switchyard.

11. Commencing in 1937, and continuing until the time of the filing of the plaintiffs' amended petition in the state court (November 19, 1941), and since that time, an engine in the defendant's switchyard was spotted for a period of about twenty minutes four or five times each day at points north of the Grace Street yard office and lunch and locker rooms and more closely to the plaintiffs' house; that is, either directly east from the house or somewhat southeast of it. The engine on these occasions was usually spotted on the scale track, but sometimes it was left on the track just east of the scale track.

12. The engine which had been spotted, as referred to in special finding No. 11, stood idle and unattended while the crews changed shifts, ate lunch or were absent for other reasons. While the engine stood in this location, excessive and unreasonable amounts of smoke, soot, cinders and steam were carried to and cast upon the plaintiffs' house and premises, especially when an east or southeasterly wind prevailed.

13. The evidence does not establish that it was necessary in the ordinary and practical operation of the defendant's switchyard to spot engines regularly at the points described in special finding No. 11.

14. This smoke, soot, cinders and steam from these engines standing idle near the plaintiffs' house as described in special findings Nos. 11 and 12 killed vegetation in the plaintiff's yard, caused paint or other finish on the outside of the plaintiffs' house to blister and peel, prevented the plaintiffs from opening their windows or using their porch at night, caused draperies, curtains, bedspreads and other linens to deteriorate and rot, penetrated the floors and woodwork, and increased the depreciation and deterioration of the house over and above the depreciation and deterioration caused by ordinary wear and tear due to smoke from necessary and regular operations of engines in the defendant's switchyard.

15. The smoke, soot, cinders and steam carried to and cast upon the plaintiffs' house and premises from idle engines which had been spotted by the defendant's employees as described in special findings Nos. 11 and 12 created and constituted, with respect to the plaintiffs, an unnecessary nuisance which did not arise out of the ordinary, necessary and practical operation of the defendant's switchyard.

16. As a direct and proximate result of this unnecessary nuisance created by the defendant's employes, the damage and injury to the plaintiffs and their property was unnecessarily accelerated and increased over and above the damage and injury due to smoke from necessary and regular operation of engines in the switchyard, and was special to the plaintiffs and in excess of that sustained by others owning homes in the vicinity of the plaintiffs' house.

17. The plaintiff Marion Kimball upon numerous occasions requested the defendant's employes, including the train master and chief operating officer, to move engines spotted near the plaintiffs' house. These requests were of no avail to the plaintiffs.

18. The unnecessary nuisance created by the defendant's employes could have been abated by the defendant.

19. While the evidence as to the exact amounts of specific items of damage is somewhat uncertain, rendering ascertainment of these amounts difficult, the evidence establishes with certainty that the plaintiffs have suffered damages as a direct and proximate result of the unnecessary nuisance created by the defendant's employes. Certain items of damage, such as interference with use of the plaintiffs' porch and windows, annoyances and discomfort from smoke, and the difference in the amount of damage to the plaintiffs' house from the unnecessary nuisance and the amount which would have been caused by ordinary, necessary and regular operation of engines can not be readily measured in a monetary way. Changes in the direction and velocity of the wind produced variations in the amount of damages.

20. Under all of the evidence the court finds in favor of the plaintiffs, and, in the exercise of sound discretion and good judgment, fixes and assesses the sum of $250.00 per year, or $1,000, for the four-year period involved in this action, as a fair and reasonable amount of compensation for damages to the plaintiffs.

Opinion

The principal issue in this action centers around the question of whether a railroad is liable to owners of residential property for damages from a private nuisance created by smoke, soot, cinders and steam from engines standing idle at points in a switchyard near the property owners' house.

Brief reference to some of the principles pertaining to smoke as a nuisance is in order at this point.

The Supreme Court of Nebraska,...