Southern Ry. Co v. Mcmenamin

• Decision Date: 18 January 1912
• Citation: 73 S.E. 980,113 Va. 121
• Parties: SOUTHERN RY. CO. v. McMENAMIN et al.
• Court: Virginia Supreme Court

73 S.E. 980

(113 Va. 121)

SOUTHERN RY. CO.

v.McMENAMIN et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1912.

Rehearing Denied March 14, 1912.

1. Appeal and Error (§ 1041^*) — Review-Harmless Error—Pleading.

The allowance of an amendment before defendant had pleaded which did not change the cause of action could not have prejudiced defendant, where the trial was then postponed for two months.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.*]

2. Railroads (§ 222*)—Operation—Nuisance;—Action—Pleading.

In selecting a place for its yards and coal chutes and power house, a railroad is acting in its private capacity, such acts being mere incidents to the operation of the road, in which the public has no concern, and so, if the yards and coal chutes constitute a nuisance, it is unnecessary to allege or prove negligence.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 222.*]

3. Nuisance (§ 53*)—Actions—Damages-Evidence.

In an action for maintaining a smoke nuisance near plaintiff's residence, where the jury viewed the premises and the evidence fullyshowed the character of the injury complained of. the question of damages was properly submitted to the jury, despite the absence of evidence of the pecuniary loss.

[Ed. Note.—For other cases, see Nuisance, Dec. Dig. § 53.^2-*]

4. Railroads (§ 222*)—Operation—Nuisance.

That the operation of trains casts some smoke upon the property of plaintiff will not warrant a railroad company in maintaining yards and coal shutes so near the property of plaintiff as to depreciate its value by reason of smoke.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 222.*]

5. Appeal and Error (§ 1064*)—Review-Harmless Error—Instructions.

In an action against a railroad company for maintaining a smoke nuisance near plaintiff's residence, error in an instruction which eliminated from the consideration of the jury any question as to injury of plaintiff's personal property was not prejudicial to defendant.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1064.*]

6. Limitation of Actions (§ 55*)—Private Nuisance—Permanent Nuisance.

A railroad is a permanent structure, and, where it is a nuisance, there is only one right of action therefor, which will be barred within the statutory period, and the entire damage suffered both past and future must be recovered in one action.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299—306; Dec. Dig. § 55.*]

7. Limitation or Actions (§ 55*)—Action for Nuisance—Railroad Company—Increase of Business.

Where a railroad company's yards were a nuisance when constructed, there was a single cause of action which accrued when the nuisance began, though the business of the road increased and the nuisance became greater from year to year.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]

8. Limitation of Actions (§ 197*)—Accrual of Cause of Action—Nuisance—Evidence.

In an action against a railroad company for a nuisance arising from its establishment of its yards and coal chute near plaintiff's residence, where it appeared that the yards and chute had been there more than the statutory time, plaintiff's evidence that the damage was not appreciable until within recent times was not contradicted by proof that the railroad company had ceased to have some of its engines coaled at that yard, for the use of inferior coal or other causes might have operated to cause the increase of the injury.

[Ed. Note.—For other cases, see Limitation of Actions, Dee. Dig. § 197.*]

Error to Circuit Court of City of Alexandria.

Action by Alice McMenamin and another against the Southern Railway Company.) There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Robert B. Tunstall and Francis L. Smith, for plaintiffs in error.

J. K. M. Norton and Edmund Burke, for defendant in error.

HARRISON, J. This action of trespass on the case was brought by Alice McMenamin and her husband, Richard McMenamin, to recover of the Southern Railway Company damages for injuries resulting, as alleged, from the maintenance by the defendant company of a nuisance on its property.

The declaration alleges that the plaintiff, Alice McMenamin, is the owner of a large brick dwelling house in the city of Alexandria, which she has occupied with her family as a home during the time of the grievances complained of, and is still occupying; that the defendant company, has, for a number of years, owned property and operated railroad yards in the city of Alexandria in close proximity to the property of the plaintiff, and has, since she bought and improved her property, erected in its yards, and established in connection therewith, a large plant for the generation of electricity, and has also erected in its yards a large structure known as a coal chute, from which the tenders of the defendant's engines are filled with coal, and has established in connection with each of these structures large stationary engines. The plaintiffs further aver that the defendant, for five years past immediately preceding the institution of this suit has so operated its electric plant, coal chute, and stationary engines in connection therewith, and in filling its engines with coal from said chute, and in firing such engines, as to cause great injury to the property of the plaintiff, Alice McMenamin, as a dwelling place, and to her personal property of every description situated therein. It is further averred that the defendant, its agents and employes, have within the five years last past caused to be emitted from its electric plant, coal chute, and stationary engines, and from its train engines, while the same are being filled with coal and fired at such coal chute, great clouds of dense, black smoke, cinders, and soot, impregnated with acid, and has emitted also therefrom poisonous and disagreeable gases, as well as much noise, and that these dense clouds of greasy and acid impregnated smoke, soot, cinders, and poisonous gases have filled the air and settled over, in, and upon the property of the plaintiff, and through the windows of her house upon the person and clothes of the occupants, to such an extent as to be almost unbearable; that her fruit trees, plants, and flowers situated upon her said premises have been greatly injured, the fruit trees being either dead or dying. It is further averred that this serious injury comes, not continuously, but whenever the wind blows in the direction of such property; that these acts of the defendant have caused a great nuisance, and in the past three years have become almost unbearable when the wind blows in the direction to bring the smoke, soot, cinders, etc., over theproperty and into the house of the plaintiff, thereby preventing its full, proper, and useful enjoyment, and rendering the same almost uninhabitable, and also thereby greatly depreciating the value of her said lot and dwelling house.

The declaration contains no averment of negligence; the theory of plaintiffs' case being that the structures and operations maintained by the defendant constituted a nuisance, which caused the injuries complained of.

The defendant railroad company filed pleas of the general issue and the statute of limitations. The trial resulted in a verdict and judgment thereon in favor of the plaintiffs, which this writ of error brings under review.

The objection to the action of the court in allowing the plaintiffs to amend their declaration by striking out the words, "and also thereby depreciating the value of her said lot and dwelling house, " is not well taken. The record does not show, as contended, that at the time the amendment was allowed the defendant had filed its pleas of the general issue and the statute of limitations. On the contrary, it appears that the amendment was first allowed, and thereupon the defendant pleaded. Nor is it tenable that the effect of the amendment was to make a new and different case. The whole proceeding was on the same day, and the trial then postponed for two months, so that the defendant could not have been prejudiced.

Instructions "A" and "B, " as modified by the court, fairly submitted the plaintiffs' theory of the case to the jury, without prejudice to the rights of the defendant.

Two objections are suggested to these instructions. The first is that the defendant's engines were engaged in transportation service; that the acts complained of constituted a legalized nuisance, for which the plaintiffs were not entitled to recover, because there was no averment or proof of negligence.

In selecting the site for its yards and the location therein for its coal chute and power house, and in the operation of those plants as well as in firing its engines on the yards and otherwise preparing them for use In the transportation of persons and property, the defendant company was acting in its private capacity, such acts being incidents to the operation of the road with which the public had no concern. Townsend v. Norfolk Ry. & L. Co., 105 Va. 22, 52 S. E. 970, 4 D. R. A. (N. S.) 87, 115 Am. St. Rep. 842; Terrell v. C. & O. Ry. Co., 110 Va. 340, 66 S. E. 55, 32 L. R. A. (N. S.) 371.

It is not necessary to allege or prove negligence where the acts complained of result from a nuisance committed by a railroad company in its private capacity, for, as a rule, it is liable under such circumstances even though the nuisance is not negligently caused. Terrell v. C. & O. Ry. Co., supra.

The second objection to these instructions is that there was no evidence of the amount or value of the injury to guide the jury in arriving at their verdict.

The jury viewed the premises and saw the conditions. The evidence abundantly shows the character of the injury complained of, the conditions under which plaintiffs suffered, and the inconvenience to them in the enjoyment of their property.

Where the injury is discomfort and inconvenience, the amount of...