Opinion
No. 30334
Decided April 8, 1946.
Negligence — Absolute nuisance or nuisance per se, defined — Qualified nuisance or nuisance dependent on negligence, defined — Pleading — Insufficient facts alleged to establish existence of nuisance per se — Smoke from locomotive under bridge blinded pedestrian who fell down steps — Cause of action not stated by petition, when — Defendant entitled to directed verdict — Negligence or inference of negligence not proved.
1. An absolute nuisance, or nuisance per se, consists of either a culpable and intentional act resulting in harm, or an act involving culpable and unlawful conduct causing unintentional harm, or a nonculpable act resulting in accidental harm, for which, because of the hazards involved, absolute liability attaches notwithstanding the absence of fault.
2. A qualified nuisance, or nuisance dependent on negligence, consists of an act lawfully but so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another. ( Taylor v. City of Cincinnati, 143 Ohio St. 426, approved and followed.)
3. A petition wherein it is alleged that defendant railroad company stopped one of its locomotives directly beneath a public bridge; that while plaintiff was crossing such bridge directly above the locomotive, defendant, without notice or warning to plaintiff, caused the locomotive to belch forth great billows of dense black smoke which completely enveloped and surrounded plaintiff, blinding her and causing her to choke; and that in attempting to escape such smoke she fell down a flight of steps at the end of such bridge and was injured, does not allege facts sufficient to establish the existence of a nuisance per se.
4. A petition, wherein the facts alleged are substantially as stated above, but which contains no allegation of any specific act or acts of negligence, fails to state a cause of action.
5. Where a cause proceeds to trial upon such a petition and plaintiff fails to prove negligence or a state of facts from which an inference of negligence may be drawn, the defendant is entitled to a directed verdict in its favor.
APPEAL from the Court of Appeals of Summit county.
Dolores Metzger, plaintiff, instituted this action against The Pennsylvania, Ohio Detroit Railroad Company and The Pennsylvania Railroad Company, defendants, in the Court of Common Pleas of Summit county. Her cause of action sounded in tort and was tried on the theory that defendant The Pennsylvania Railroad Company had created a nuisance by reason of which plaintiff was injured.
The record discloses substantially the following state of facts:
Since 1926, defendant The Pennsylvania Railroad Company has operated trains over tracks extending through the city of Akron, under trackage rights granted by a written lease for 999 years, which was in full force and effect on February 10, 1942.
In 1936, in accordance with law, the Director of Highways of the state of Ohio made a finding that it was reasonably necessary and expedient to eliminate in that city, certain grade crossings, one of which was the South Main street crossing. A written contract was entered into between the state, the city, and the Erie, The Baltimore Ohio and The Pennsylvania Railroad Companies in furtherance of that purpose.
In 1937, South Main street, one of the main arteries of traffic in the city, was closed to vehicular traffic but pedestrian traffic was accommodated by means of an overhead bridge erected within the duly dedicated portion of that street. Access to the bridge at each end was by means of open steel steps. The bridge was lighted by electric lights. The most southerly track under the bridge was owned by The Pennsylvania, Ohio Detroit Railroad Company and leased to The Pennsylvania Railroad Company. Many persons including the plaintiff used the bridge to get to and from work at the Firestone Tire Rubber Company.
On the morning of February 10, 1942, before daylight, plaintiff as she was walking to work approached the bridge from the north. Before ascending the steps she saw a long freight train traveling west over the crossing and also a locomotive traveling slowly to the west on the most southerly track. As she ascended the stairs at the north end of the bridge, the locomotive stopped directly beneath the bridge toward the south end thereof and she noticed white smoke or steam coming from the smokestack of the locomotive. However, her vision was in no way obstructed. Just before she reached the southerly end of the bridge, the locomotive directly beneath the bridge, without warning, belched forth great billows of dense black smoke and gas which completely enveloped plaintiff and the entire passageway. The smoke was so thick that plaintiff could not see and the smoke and gas blinded and choked her. In order to avoid the effect of the gas and smoke she walked about 15 feet to the south end of the bridge and fell down several steps and was injured.
The record discloses further that approximately 175 trains passed under this bridge each 24 hours and in addition switching operations of the various railroads hereinbefore mentioned were carried on under and in the vicinity of the bridge.
At the conclusion of plaintiff's evidence and at the conclusion of all the evidence, defendants moved for a directed verdict in their favor, which motions were overruled.
The jury returned a verdict in favor of plaintiff. After the overruling of defendants' motions for judgment notwithstanding the verdict and for a new trial, judgment was entered on the verdict.
On appeal on questions of law, the Court of Appeals reversed the judgment and entered final judgment ill favor of the defendants.
The cause is here for review following the allowance of a motion to certify the record.
Mr. Claude P. Herman and Mr. Stephen J. Wozniak, for appellant.
Messrs. Wise, Roetzel Maxon, for appellees.
In the course of this opinion, Dolores Metzger will be designated as plaintiff and The Ohio, Detroit Pennsylvania Railroad Company and The Pennsylvania Railroad Company as defendants.
In the statement of facts it has been pointed out that the case was tried on the basis of nuisance. It should further be pointed out that The Pennsylvania, Ohio Detroit Railroad Company was named a defendant as lessor, under the provisions of Section 8814, General Code, which makes a railroad company lessor and a railroad company lessee jointly liable for negligence growing out of the operation of the railroad.
In the case of Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A. L. R., 44, Judge Hart discussed the subject of nuisance in all of its aspects and he clearly pointed out the distinction between an absolute nuisance, commonly known as a nuisance per se, and a qualified nuisance, commonly known as a nuisance based on negligence. No useful purpose would be served by reiterating here what was so well said there.
The first three types of wrongs pointed out by Judge Hart in the Taylor case, supra, involve absolute nuisance and the fourth type of wrong involves qualified nuisance, i. e., nuisance based on negligence.
In the instant case, the Court of Appeals held that the facts did not disclose a nuisance per se, and with that conclusion we are in entire accord. Therefore, if nuisance is involved here it was a nuisance based on negligence. We shall, therefore, confine ourselves to the question of qualified nuisance.
In the Taylor case, supra, at page 445, it is said:
"* * * a qualified nuisance or nuisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another."
This definition is supported by the overwhelming weight of authority, and it may be said with equal supporting authority that, where the recovery sought is based on qualified nuisance, the petition must allege some act of negligence upon the part of the party to be charged. Unless there be some act of negligence, there can be no qualified nuisance. O'Day v. Shouvlin, 104 Ohio St. 519, 136 N.E. 289; McFarlane v. City of Niagara Falls, 247 N.Y. 240; Taylor v. City of Cincinnati, supra.
It should be observed that The Pennsylvania Railroad Company had the legal right to operate coal-burning locomotives upon its tracks, and that it had the legal right, if it did so, to fire such engines at any time it became necessary during the course of the railroad operations.
It is a matter of almost universal knowledge that when a coal-burning engine is fired it will emit dense black smoke.
In an action for nuisance based on negligence, before recovery can be had, it is necessary to find some duty owing to the party complaining and a breach of that duty.
With those thoughts in mind, let us scan the allegations contained in the petition and the evidence offered in support thereof and determine whether plaintiff either pleaded or proved a cause of action.
A careful examination of the petition will disclose that the plaintiff failed to allege any act of negligence on the part of the defendants. It is quite evident from a reading of that document that the pleader proceeded upon the theory that the cause of action was based upon absolute nuisance, and that it was unnecessary to allege any act of negligence.
This court on several occasions has passed upon the question here presented.
In Huff v. Austin, 46 Ohio St. 386, 21 N.E. 864, it was held:
"The plaintiff as an employee of F. Co., was at work on the premises of the defendants, in helping to. set up a saw-mill which the defendants had purchased of F. Co. While so at work, a steam boiler, owned and used by the defendants on the premises to run the saw-mill, exploded and injured the plaintiff. Held: That in an action for damages, the mere fact of the explosion did not raise a prima facie presumption of negligence on the part of the defendants."
That case involved a qualified nuisance.
In Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St. 560, 54 N.E. 528, the court was considering a case wherein the agency causing the damage was nitroglycerine. There the court held that recovery could be had without plea or proof of negligence. That case involved absolute nuisance.
In O'Day v. Shouvlin, supra, the court was dealing with a case involving a fire caused by sparks from a cupola located on nearby property, and held that the petition, in the absence of allegations of negligence, was demurrable. That case involved qualified nuisance. See, also, Langabaugh v. Anderson, 68 Ohio St. 131, 67 N.E. 286; and Armour Co. v. Ott, Admx., 117 Ohio St. 252, 158 N.E. 189.
Based upon the case law of Ohio, this rule may be promulgated: If the cause of action is based upon absolute nuisance, it is unnecessary to plead or prove negligence; on the other hand, if the cause of action is based upon qualified nuisance, negligence must be alleged and proven.
Applying that test to the petition in the instant case, we conclude that the petition fails to state a cause of action.
Coming now to the evidence, the only evidence offered which would even tend to raise an inference of negligence was the fact that from the engine, suddenly and without warning, "big black smoke came up and surrounded" plaintiff.
Unless that fact raised an inference of negligence, the plaintiff failed to prove negligence or any facts from which negligence could be inferred.
The record is devoid of any evidence as to what caused the locomotive to stop directly beneath the bridge or what caused it to emit the dense black smoke. The record does disclose that the locomotive was stopped under the bridge for only a few minutes, that the dense black smoke and gas lasted only a short period of time, and that there was no recurrence thereof.
It was not negligence to stop the locomotive under the bridge.
The most favorable view that can be taken of the plaintiff's case is that fresh coal was put into the locomotive's firebox while it was standing directly beneath the bridge, but, even if we assume that state of facts, can it be said that the railroad company would or should reasonably have anticipated a result such as that disclosed by this record? We think not.
In Hetrick, Admx., v. Marion-Reserve Power Co., 141 Ohio St. 347, 48 N.E.2d 103, we held that a defendant is not liable to one injured as the result of some unusual occurrence that cannot fairly be anticipated or foreseen and is not within the range of reasonable probability. In 29 Ohio Jurisprudence, 483, Section 68, will be found a full discussion of this subject.
This court in the case of Ruffner v. Cincinnati, Hamilton Dayton Rd. Co., 34 Ohio St. 96, held:
"Where a railroad company is authorized to propel its trains and operate its road by the use of steam locomotives, no inference of negligence arises from the mere fact that an injury to adjacent property was caused by sparks emitted from such locomotives."
The emission of dense black smoke from a coal-burning locomotive is a natural result from the ordinary use thereof, and it cannot be presumed, either in law or in fact, that such smoke is caused by negligence in such use.
The principle applied in the Ruffner case applies with equal force to the facts here presented and is dispositive of this case.
The plaintiff failed to allege or prove any act of negligence or any facts from which negligence could be inferred.
As we view this record, the plaintiff neither pleaded nor proved any cause of action and defendants were entitled to a directed verdict.
The Court of Appeals did not err in so holding and its judgment should be and hereby is affirmed.
Judgment affirmed.
ZIMMERMAN, TURNER, MATTHIAS and HART, JJ., concur.