Baltimore Belt Railroad v. Sattler

Fowler, J., delivered the opinion of the Court. This is an action to recover damages brought by George W. Sattler of Baltimore City against the Baltimore Belt and the Baltimore and Ohio Railroad Companies for alleged injury to his property caused by smoke and unwholesome vapors discharged by the engines which are run over the Belt Railroad and by the large amount of noise and vibration caused by such engines and the trains of the defendants. The narr. alleges “that by reason of the said discharge of smoke and offensive and unwholesome vapors upon the plaintiff’s land and by reason of the said noise and vibration as aforesaid, upon the plaintiff’s said land, it is rendered far less desirable for dwelling or building purposes than it otherwise would be; the plaintiff is deprived of the profits and advantages that would reasonably enure to him from the development and improvement of his said property and the value thereof is seriously impaired. * * ³²¹ The defendants pleaded the general issue. Subsequently they asked and obtained leave to file an additional plea.

It alleges that the Belt Railroad Company in the execution of the powers conferred on it by its charter and by the Act of Assembly and by ordinance of the city of Baltimore has constructed its railroad in the manner and upon the route prescribed and said railroad is now being operated in the execution of the powers conferred on the Belt Railroad Company by its charter, the Act of Assembly and said ordinance; that the cars and engines operated over said road are all of the best modern type and are operated in a careful manner and that the noise, smoke, vapors and vibration and other inconveniences complained of by the defendant result from the operation of its cars and engines in a lawful manner, and that any damage caused the plaintiff by the operation of said railroad has been caused by the necessary and unavoidable residí of the operation of said cars and engines in a lawfid manner. The plaintiff’s demurrer to this plea was sustained, and the defendant withdrew their pleas previously filed and demurred to the narr. This demurrer was overruled, and the defendants filed a second additional plea which on motion of the plaintiff was not received, whereupon the defendants refiled the general issue pleas and its first additional plea, a demurrer to which last-named plea had already been sustained. It was again demurred to and the demurrer again sustained.

During the course of the trial a large number of exceptions were taken to rulings upon the admissibility of evidence and one to the action of the Court upon the prayers. The judgment was in favor of the plaintiff and this is the defendants’ appeal. Before considering the questions that are presented by the record and relied on here- it may be proper to say that we are not called on to discuss the ruling of the Court below on the defendants’ demurrer to the narr., nor that relating to the plaintiff’s motion ne recipiatur, because the former is presented by the demurrer which was sustained to the additional plea, and all objection to the latter was abandoned at the hearing in this Court. ³²² The first question presented arises upon the action of the lower Court in sustaining plaintiff’s demurrer to the defendants’additional plea. The demurrer is based upon two grounds, first, that the plea amounts to the general issue, and second, that it asserts the legal proposition that the plaintiff is not entitled to recover damages for the injury alleged in the declaration, without proof of negligence.

Counsel for both sides concur in saying that the second ground of this demurrer is the main and by far the most important question involved in this appeal. Whether, therefore, the plea is subject to the criticism that it amounts to the general issue and for that reason is defective, is quite immaterial for the main question, namely, whether the plaintiff can recover without alleging and proving negligence on the part of the defendants, is also presented by the demurrer to the narr. and by the ruling of the Court on the plaintiff’s prayers. Briefly then in regard to the first ground of this demurrer. We do not think the plea is bad on the first ground relied on.

Under the strict rules of pleading the defendants have a right, if they so elect, to plead specially, defenses in confession and avoidance which would be admissible in evidence under the general issue; and the fact that they are so admissible does not make the plea bad. Poe's Pl., sec. 641; DeLauder v. Baltimore Co., 94 Md. 7 . Thus in this plea the defendant says substantially, “Yes, I confess that there is smoke and there are the other things complained of by the plaintiff, but they all necessarily result from the operation of our cars, engines and road in a lawful manner.” The plea, therefore, is a plea of confession and avoidance. McAllister v. State, 94 Md. 300 ; Keedy v. Long, 71 Md. 388 .

Before proceeding to discuss the main question presented by the demurrer, perhaps it would be desirable for the purpose of clearness to state the facts of the case more at large than we have already done. It appears from the evidence that the plaintiff has for many years lived at 2619 North Charles street, Baltimore, and that he is the owner of the two lots of ground, the damage to which is the basis of this suit; that one of the lots is 100 feet front ³²³ on Charles street immediately south of the open cut of the Baltimore Belt Railroad and running back 184 feet; that the other lot fronts 50 feet on Charles street with the same depth as the first-named lot; that between these two lots there is a lot 50 feet front on Charles street with same depth as the others just named, on which is situated the house in which plaintiff resides but does not own; that the two lots first named, damage to which is here claimed, are used as a garden and contain shade trees, walks, fruit trees, flowers, &c.; that there are two tracks in the open cut of the Baltimore Belt Railroad immediately north of this property, over which tracks, a great number of trains pass during the day and night; the tunnel runs a little beyond the front yard of plaintiff’s lot, to the north and the smoke and the gas and the vibration are caused by the trains. The plaintiff testified, as did other witnesses, that as soon as the trains come out of the tunnel into the open cut in front of his lots they draw the smoke out of the tunnel and it is cast upon his property to such an extent that everything is dirty and unpleasant; that the noise and vibration caused by the trains are very unpleasant. There was also a mass of testimony in regard to the injurious effects on the value of the plaintiff’s property caused by the injuries complained of, which will be considered later, but the question now is whether, assuming the plaintiff’s property was injured in the manner and to the extent alleged in the narr. and admitted by the plea, he can recover without showing negligence on the part of the defendants.

(1) The case of Short v. Baltimore City Passenger Railway Co., 50 Md. 73 , was much relied on by the defendants. There it was held by the majority of this Court that the defendant company was not liable without proof of negligence for damage to plaintiff’s.house caused by obstructing the natural flow of water in the street due to clearing snow from its tracks ; and Judge Robinson said in delivering the opinion of the Court that the broad question was presented whether damages could be recovered irrespective of the question of negligence on the part of the railway company, and that the true test in actions ³²⁴ of that kind by which exemption from liability is to be determined is whether in the act complained ¿/"the owner has used his property in a reasonable, usual, and proper manner, taking care to avoid unnecessary injury to others. It was upon Short’s case, supra, and the provision of our Code, sec. 198, Art. 23, that the defendants based their contention that there can be no recovery in this case without proof of defendant’s negligence. The section of the Code just referred to provides that railroad companies shall be responsible for damage resulting in the killing of cattle, &c., or by fire from their engines, unless they “can prove * * * that the injury complained of was committed without any negligence.” Undoubtedly if the rule laid down in Short’s case is applicable in all its breadth to this, the defendant’s contention needs little more to sustain it, so far as Maryland authority is concerned, for that case declares that if the act there complained of was lawful and that if the defendant used its property in a reasonable, usual and proper manner taking care to avoid unnecessary injury to others no recovery can be had even though damage should follow such use.

The plea, the demurrer to which we are considering, alleges that the injuries here complained of are only such as necessarily and unavoidably result from the operation of the road lawfully. Let us, therefore, in the first place, examine Short's case in order to see what is the full scope of the rule there laid down by the majority of the Court and the grounds upon which it is based; and then secondly to ascertain whether the provisions of the Code just referred to have any bearing upon the questions raised by this demurrer. What are the.facts of the Short case? On the 6th January, 1877, there was a heavy fall of snow, and in clearing its track, the Baltimore City Passenger Railway Company threw the snow off towards the curb and thereby, as it was alleged, obstructed the natural flow of the water at the corner of Gay and Hoffman streets.

A very heavy rain “one of unusual severity” followed the snow and the plaintiff’s house was flooded with- ³²⁵ water. He asked the Court to instruct the jury that if they should find that the Railroad Company obstructed the natural flow of the water on the street and by reason of such obstruction plaintiff’s house was flooded, he was entitled to recover. This prayer was modified by the Court below to the effect that if the defendant company exercised ordinary care in removing the snow from its track and that the damage was attributable either to the conformation of the ground and the situation of the injured premises, or to a storm of such extraordinary severity that the usual drainage provided by the city would not carry the water off, then their verdict should be for the defendant. This prayer as modified was granted.

And in the opinion of the Court, the conclusion arrived at, is placed upon two grounds, first, that the defendant in the act complained of was as matter of law using its property “in a reasonable, usual and proper manner; ” and second, that if, as matter of fact, the damage was attributable to the conformation of the ground or to a storm of extraordinary and unusual severity the plaintiff could not recover. So that what was decided as matter of law in Short’s case was this and no more, that the act complained of m that case was authorized by the charter of the defendant and the ordinances of the city of Baltimore, and that, therefore, “the throwing of the snow on the bed of the street was using the street in a usual, reasonable and proper manner; ” and that the plaintiff could not recover unless the defendant was guilty of negligence. Without intending to question the decision in Short’s case, so far as applicable to the facts of that case, we do not think it affords the defendant any justification in asking us to sustain its plea in the case now before us. What is that plea?

We have already recited its substantial allegations. It is sufficient now to recall that it alleges that all the injurious acts complained of in plaintiff’s declaration are only such as necessarily result from the operation of defendants road and the running of its cars and engines. While the demurrer, of course, admits all matters of fact wetf pleaded, it does not admit matters of law, and hence the question whether the acts complained of in the declaration and admitted ³²⁶ by the plea are authorized and justified by defendants’ charter and the city ordinances must ultimately be decided by the Court and not by the jury. Whether, therefore, the defendants in the construction of the tunnel and in the operation of their road and the running of their engines and cars were acting in a lawful manner depends upon their charter and the ordinances of the city of Baltimore passed in pursuance thereof.

By its charter it was authorized to build its road for the most part through a tunnel through the city of Baltimore with the consent and upon the conditions prescribed by the ordinances of the city. By Ordinance 83, sec. 5, certain provisions were enacted providing how the tunnel should be ventilated, in addition to the ventilation afforded by the mouths thereof, and by sec. 14 of the same ordinance it was declared that the provisions of said ordinance shall be deemed conditions of the consent of the municipal authorities to the passage of said road through the city of Baltimore, and as prescribing the manner, terms and conditions upon which the streets, &c., or ground of any kind in said city may be used by said Railroad Company. This ordinance was approved May 14th, 1890. Ordinance 84 approved on the same day provided that in the open cut immediately north of the plaintiff’s lot should be established a station, the train sheds of which shall, however, be so constructed as to cover the whole of the railroad tracks and platform in said cut, and to be provided with smoke escapes, the tops of which shall be not less than 25 feet above the level of Charles street.

It is further provided that the provisions of this ordinance shall be construed to all intents and purposes as though they had been inserted in Ordinance 83, and hence the compliance with the provisions of this ordinance requiring the covering of the open cut from which the narr. alleges and the plea admits all the damage complained of arises, is expressly made a condition to the consent of the municipal authorities to the passage of the railroad through the city. Now the narr. alleges and the plea admits that the plain ³²⁷ tiff’s property was damaged by the smoke, noise, vapor, &c., which was caused by the running of the defendants’ trains. The plea also alleges that all this injury was the unavoidable result of the operation of defendants’ cars in a lawful manner. Of course this last allegation is not admitted by the demurrer, because matters of law never are so admitted.

Therefore the demurrer does not admit that the acts which produced the injury were lawful. The charter and Ordinance 83 referred to in the plea do undoubtedly authorize the defendants to run trains through the tunnel, and therefore it could lawfully do so, but surely it cannot follow that because the defendants allege they did this lawful act in a lawful manner, it necessarily follows they did so. Whether they did or did not is a question of law for the Court to decide. In the face of the allegations of injury to plaintiff’s property, all of which are conceded, can we say that the defendants acted in a lawful manner?

No one, neither private individual nor a corporation, has the right in the use of his property to injure his neighbor, as it is conceded the plaintiff is injured by the acts complained of. Such injuries are neither in fact nor law only such as necessarily follow the lawful use of chartered privileges. Not so in fact because we all know from observation' and experience that such lawful use does not produce the result alleged, and if it did it would be impossible to reside in close proximity to railroads; and not so in law, because it is the law everywhere that everyone shall so use his own property as not to injure his neighbor. But not only so, we have frequently held that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to a neighboring owner for which an action will lie.

And this too without regard to the locality where such business is carried on; and although the business may be a lawful business and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business. Susquehanna Fertilizer Co. ³²⁸ v. Malone, 73 Md. 268 ; Same v. Spangler, 86 Md. 562 . This rule applies to individuals and corporations alike. From what we have said it will appear that while the Court held in Short's case that in the act there complained of the defendant company in view of their charter and the ordinance of the city used the street in a reasonable and proper manner, and that if there was no negligence, no recovery could be had, we are of opinion that in this case while the defendants had the right to run their trains they had no right given them by their charter or otherwise to operate them in such a manner as to injure the plaintiff’s property to the extent it is conceded it was injured.

It will be observed that the plea is based upon and refers only to its charter and Ordinance 83 of 1889-1890 as justifying its acts and' making them lawful, No reference whatever is made to the later Ordinance No. 84 of 1890 nor to No. 81 of 1901 and both of which it was agreed should be and were offered in evidence, and by the first of which the defendants were required to build certain sheds with smoke escapes and-by the second of which they were relieved of that duty upon certain conditions. If then, as we have said, the injuries to the plaintiff’s property were such as alleged arid.admitted, it would be impossible for the defendants to successfully seek protection under their charter, the Acts- of Assembly or the city ordinances. In Cogswell