Vile v. Pennsylvania R. Co.

• Decision Date: 01 July 1914
• Docket Number: 291
• Citation: 246 Pa. 35,91 A. 1049
• Parties: Vile, Appellant, v. Pennsylvania Railroad Co
• Court: Pennsylvania Supreme Court

91 A. 1049

246 Pa. 35

Vile, Appellant, v. Pennsylvania Railroad Co

No. 291

Supreme Court of Pennsylvania

July 1, 1914

Argued January 20, 1914

Appeal, No. 291, Jan. T., 1913, by plaintiff, from judgment of C.P. No. 4, Sept. T., 1909, No. 1158, non obstante veredicto in case of Charles M. Vile v. The Pennsylvania Railroad Company. Reversed.

Trespass to recover damages for injuries to plaintiff's land caused by the discharge of cinders, smoke, etc., from defendant's locomotives. Before WILLSON, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $5,500; the court subsequently entered judgment for defendant n.o.v. Plaintiff appealed.

Error assigned was the judgment of the court.

No error was committed in submitting this case to the jury, and plaintiff is entitled to judgment on the verdict. The judgment entered for the defendant is, therefore, reversed and the record remitted that plaintiff may have judgment.

J Hibbs Buckman, of Buckman & Buckman, for appellant. -- The plaintiff's expert was a competent witness: Sporson v. Philadelphia & Reading Railway Co., 54 Superior Ct. 30.

The nuisance was avoidable: Stokes v. Pennsylvania Railroad Company, 214 Pa. 415 (63 A. Repr. 1028); Baltimore R.R. Co. v. Fifth Baptist Church, 108 U.S. 317; Cogswell v. N.Y., Etc., R.R. Co., 103 N.Y. 10; Garvey v. Long Island R.R. Co., 159 N.Y. 323; Spring v. Delaware, Etc., R.R. Co., 88 Hun. (N.Y.) 385; Chicago, G.W.R.R. Co. v. Church, 102 F. 85 (Court of Appeals); Terminal Company v. Jacobs, 109 Tenn. 727; Smith v. Midland & Lancashire, Etc., SR.R. Co., 37 L.T. Repr. N.S. 224; Pennsylvania R.R. Co. v. Angel, 41 N.J. Eq. 316 (7 A. Repr. 432); Kuhn v. Illinois Central R.R. Co., 111 Ill.App. 323; Tucker v. Vicksburg S. & P. Ry. Co., 51 So. Repr. 689; Elliott on Railroads, 2d Edition, 1056 A; Cogswell v. New York, New Haven and Hartford Railroad Company, 103 New York Reports, 10; Spring v. Delaware, Lackawanna and Western Railroad Company, 95 N.Y. Supreme Court Reports 385; Pennsylvania Railroad Company v. Angel, 41 N.J. (Eq.) 316; 7 A. Repr. 432; Terminal Co. v. Jacobs, 109 Tenn. 727; Garvey v. Long Island Railroad Company, 159 N.Y. 323; Chicago, Great Western Railway Company v. First Methodist Church, 102 Fed. Repr. 85.

John Hampton Barnes, for appellee. -- The use of the property in the manner complained of was lawful: Boyd v. Harris, 176 Pa. 484; Cleveland & Pittsburgh R.R. Co. v. Speer, 56 Pa. 325; Struthers v. Dunkirk, Etc., R.R. Co., 87 Pa. 282; Borough of Millvale v. Evergreen R.R. Co., 131 Pa. 1; Howley v. Central Valley R.R. 213 Pa. 36; Pennsylvania R.R. Co. v. Lippincott, 116 Pa. 472; Dooner v. Penna. R.R. Co., 142 Pa. 36; Philadelphia & Reading R. Co. v. Pennsylvania Schuylkill Val. R.R. Co., 151 Pa. 569; Frankford & Bristol Turnpike Co. v. Philadelphia & Trenton R.R. Co., 54 Pa. 345; Canavan v. Oil City, 183 Pa. 611; Rocap v. Telephone Co., 230 Pa. 597; Kingsley v. D., L. & W.R.R., 81 N.J. Law 536.

There was no evidence which warranted the court in submitting to the jury the question whether it was the duty of the defendant to adopt either of the methods for remedying the alleged nuisance suggested by plaintiff's witnesses: Richard's Appeal, 57 Pa. 105; Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552; Bunting v. Penna. R.R. Co., 203 Fed. Repr. 193.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

In 1889 the plaintiff below leased several acres of land, in the City of Philadelphia, for the purpose of carrying on his business as a truck gardener. He raised all kinds of vegetables, some under sash for the early market. In 1904 the Pennsylvania Railroad Company established a place about four hundred yards from his truck garden, for the purpose of cleaning its locomotives. These were cleaned by the use of compressed air driven through the boiler tubes. As a consequence of this process of cleaning, smoke, soot, ashes, cinders and greasy substances were blown out of the stacks of the locomotives and settled on appellant's premises, ruining his plants and vegetables and destroying his business. In this action he recovered a verdict of $5,500 for the injuries which he sustained, but defendant's motion for judgment non obstante veredicto was allowed on the ground that the testimony of the witness called by the plaintiff as an expert to show that the locomotives of the defendant could have been cleaned without any resultant injury to the plaintiff was insufficient to sustain his charge of negligence. On this appeal the narrow question is whether the court below correctly so held in denying plaintiff judgment on the verdict.

The witness upon whose testimony the plaintiff relied as sufficient to satisfy the jury that the defendant could have adopted means for cleaning the tubes in the boilers of its locomotives which would have prevented the deposits of soot, ashes and other injurious materials upon his premises, was J. H. Whitham. On his preliminary examination this witness testified that he was an engineer, having graduated from the United States Naval Academy; that he had followed his profession for thirty-five years and had been a consulting engineer since 1891; that he had devoted himself almost exclusively to the study of power and combustion and had experience in doing away with the evils of soot, gas and smoke; that this experience included the installation of apparatus which prevented the escape of smoke or caused the distribution of it through a zone so large that it did no local injury and that the deposits of soot on premises adjoining or near those upon which boilers are cleaned can be avoided by the use of scrapers instead of blowers, and by washing the smoke to remove injurious impurities. While the witness admitted that he had not had experience with locomotive boilers, he at the same time said there was no difference between locomotive boilers and any other boilers in regard to soot, gas and smoke. His testimony as to this was as follows: "Q. Will you tell us whether there is any difference between locomotive engines or boilers and any other boilers in regard to the soot and gas and smoke? A. No, sir. Except that the locomotive has a shorter stack, and the smoke hugs the lower grade closer than a stationary plant with a tall chimney. Q. Then exactly what could be done with one could be done with the other; is that true? A. Yes, sir. Q. Does the mere fact that a locomotive boiler is on wheels make any difference from any ordinary stationary boiler? A. No, sir. Both boilers burn fuel, both have to have a draft to burn the fuel and a grate to burn the fuel on. Both have to have water in an enclosed reservoir. Both have to have surface for preserving heat. Both sustain pressure and both operate engines. Q. Do both have tubes? A. Yes, sir. Q. Of the same character? A. Of the same character." It may be here noted that the foregoing testimony was not contradicted by Alfred W. Gibbs, the chief mechanical engineer of the defendant company, the only witness whom it called.

Before he was called as a witness Whitham had inspected the property of the plaintiff and the yard of the defendant in which its locomotive boilers were cleaned, and, when asked whether in his judgment anything reasonably practicable and in accordance with actual experiments could have been done to have saved the plaintiff from the injuries which he suffered through the emission of smoke, soot and greasy substances from the locomotive of the defendant, he answered in the affirmative, and then proceeded to testify as follows "Q. In your opinion, could anything be done to eliminate the damage testified there? I might state, you not being present, briefly, that the testimony is that great and serious damage has been done to the growing of vegetation, lettuce, cauliflower, beets, celery, spinach, parsley, of the plaintiff by reason of a heavy deposit of an oily, greasy, black substance that settles on the vegetation, falling when the wind comes from the direction of these yards, as described by the witnesses, as being like snow, killing the vegetation, and when it did not kill it, settled on it, that this substance, when it was attempted to be washed off or removed, kind of smears like grease. In your opinion, could anything be done which is not being done by the defendant in this case, which is something reasonable, practicable and according to demonstrated experiments, to obviate the nuisance? A. Yes, sir. Q. What could be done? A. The tubes of the boiler could be brushed out instead of being blown out with an air blast or steam blast. That is a custom which has...