Opinion
04-18-1890
BEIDEMAN v. ATLANTIC CITY E. CO.
John W. Wartman and J. J. Crandall, for complainant. A. G. Richey, for defendant.
(Syllabus by the Court.)
John W. Wartman and J. J. Crandall, for complainant. A. G. Richey, for defendant.
BIRD, V. C. The complainant asks that the defendant may be enjoined from using its tracks for the purpose of shifting its cars in making up its trains, or in unmaking, in the vicinity of his dwelling. The tracks used for this purpose are about 60 feet from the dwelling of the complainant, and they are used by the defendant in preparing trains for departure, and in shifting the cars of incoming trains to various localities. Of course this work is done by the use of the engine, and more or less noise is made, and smoke and steam cast off from the engines. Besides these it is said that the trainmen indulged in a great deal of loud and boisterous hallooing. These noises and the smoke more or less disturb the complainant and his wife, by keeping them awake, and by so affecting their dwelling, imparting to it a trembling or vibratory motion, so that a tumbler would not stand upon the table, nor a lamp upon the mantelpiece, and by rendering the atmosphere unpleasant, if not unwholesome. Mrs. Beideman would be awakened by it at night, and she alleges that it produced nervous prostration. The use of the track for these purposes, it is insisted, is not only unlawful, but unnecessary. It is urged that this shifting of the trains is a part of the terminal business of the company, and that the statute expressly provides (Revision, p. 919, § 65) for the condemnation of sufficient land for that purpose. This method of reasoning will not aid the complainant, for the reason that, whatever land may be condemned, the work of shifting cars and making up trains might still be carried on just as near to his residence, or to the residence of some other citizen, and work all the inconvenience and discomfort now complained of. I do not understand that it is insisted that the land so condemned for terminal purposes shall be at any given distance from the residence of citizens, or that it shall be of any particular form, such as a square, or long and narrow. Nor do I see that the court can prescribe the bounds, or fix the shape or character, of the land used for terminal purposes. If this be so, then, in every case where the tracks are used for the purposes above indicated alone,$$$
the court can only inquire whether there is any abuse of the privilege or franchise which the law confers. In this ease it has not been disputed by the defendant but that the use of its tracks for the shifting of its cars caused a trembling motion in the house of the complainant, and a nervous prostration at times to his wife, and aroused them from sleep at night, during three or four months of the year, on every Friday, Saturday, and Sunday nights. While this vibratory motion continued up to the tiling of the bill, the noise produced by the hallooing of the men, which contributed very materially to the nervousness of Mrs. Beideman, ceased to a great extent prior to that time; the company having erected a tower, by which it is enabled to signal the trainmen in directing them in shifting the cars. This leaves us to inquire whether or not a railroad company may be adjudged guilty of a nuisance which uses its main tracks not only for outgoing and incoming trains, but for the necessary shifting of its cars in making up and unmaking trains, when in so doing it causes disturbance, discomfort, or nervousness to the individual residing near its tracks, unless some abuse of its chartered privileges be clearly shown to accompany the act. I say residing near, meaning, of course, near enough to be affected, because this is the only criterion which can be adopted; for, plainly, the facts which show results in every given case must control the court, whether the individual complaining resides near by or at a greater distance.
The question thus presented is one of no little difficulty. In disposing of it, I do not mean to be understood as coming to the conclusion that the defendant would not be liable to be restrained by this court, had it been clearly made to appear that its management of its road not only produced the vibration and discomfort complained of, but also disease of any serious character. In this case, as above intimated, it is undisputed that Mrs. Beideman was awakened at night by the movement of the engines and trains, and that a nervous condition was the result. But no physician was produced to show how serious this nervous condition was, nor to show that it resulted from the operation of the defendant's road alone. Therefore, I am constrained to come to the conclusion that Mrs. Beideman was not so seriously affected as that her condition became alarming either to herself or to her husband. With the element of disease or sickness out of the case, that there is still difficulty in determining the rights of the parties is made very apparent by numerous cases; and since the principal ones are cited in the note to the case of Railroad Co. v. Angel, 56 Amer. Rep. 6, I will only refer to it, and also to Shively v. Railway Co., 74 Iowa, 169, 37 N. W. Rep. 133. (7 Amer. St. Rep. 471, and notes.) With the element just referred to out of the case,and the question for consideration being whether or not the defendant has abused the franchise granted to it by the legislature and the city authorities, I am constrained by the great weight of adjudications to conclude that it has not. It was upon this theory that the case of Railroad Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. Rep. 432, was decided, (56 Amer. Rep., supra.) This view, I think, was also sustained by the case of Railroad Co. v. Thompson, 45 N. J. Eq. 870, ante, 622. In those cases, while the shifting of the cars was complained of, the great burden which rested upon the defendant company was not only allowing engines to stand long periods of time in front of the complainant's dwelling, emitting large quantities of smoke and steam, and in making hideous noises by whistling and casting off steam, greatly beyond any necessity, but especially in allowing great numbers of ears loaded with cattle, sheep, or swine also to stand long periods of time near by and in front of the said dwellings. Cogswell v. Railroad Co., 8 N. E. Rep. 537. I am aware that the complainant's counsel rely upon the first two of these cases, and insist that the present one is clearly within the rules there laid down. But after a very full consideration I am wholly unable to come to that conclusion; and this view of the case, I think, is well supported by the case of Railroad Co. v. City of Newark, 10 N. J. Eq. 352, which shows that there must be some negligence or abuse of its privileges on the part of the company. Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 196, 53 Amer. Dec. 357, and numerous cases cited at the end of the case in the volume last referred to. Bellinger v. Railroad Co., 23 N. Y. 42; and see especially the case of Beseman v. Railroad Co., 50 N. J. Law, 235,13 Atl. Rep. 164, which decision was sustained on appeal.
Also reported in 7 Atl. Rep. 432.
There is no proof in the case to show that the defendant has negligently exercised the right conferred by the legislature. I think the complainant's bill should be dismissed, with costs.