Price v. Grantz

Opinion, Mr. Justice Paxson : The learned court below declined to affirm the defendants’ tenth point, for the reason that it was only a naked proposition, unconnected with the facts of the case. [412] I assume the learned judge would not have denied the point, had he considered that there was evidence from which the jury might have found the facts of which it is predicated. An injury to a single individual from lead poisoning, because of a peculiar and exceptional susceptibility of such person to such influence, when the trace of arsenic or lead was so slight as not in any degree to affect other persons, would not be sufficient to make the leadworks a common or public nuisance. So plain a proposition does not need elaboration. We turn then to the question whether the court was correct in assuming that the point was a mere abstract proposition, unconnected with the facts of the case. Here we think the learned judge inadvertently fell into error. It is true there is no direct testimony as to the alleged peculiarity and susceptibility of the wife of the plaintiff below to the influence of lead and arsenic, and it was, doubtless, this circumstance, which, in the hurry of the trial, misled the court below. The fact was overlooked that there was testimony from which the jury might have drawn such an inference. Thus, if we have the proof that one person has sustained injury from the fumes thrown out by the leadworks, while one hundred other persons equally exposed to its influence are not affected by it in any degree, the jury would have a right to infer that the one person had “ a peculiar and very exceptional idiosyncrasy or susceptibility ” to the influence of lead and arsenic. We think there was enough evidence to submit upon this question, and that the point should have been affirmed. We also sustain the second assignment of error. The plaintiff declared as for a common and public nuisance, with an averment of special damage. The plea was the general issue. By the defendants’ first point the court was asked to instruct the jury that, “ under the pleadings in this case, the plaintiff must show that the defendants, in operating the lead-works and shot-tower, or one of them, were guilty of maintaining a common nuisance, which was inconvenient and troublesome to the whole neighboring community in general, and that from the same the plaintiff suffered a special or peculiar injury.” This point the court refused, and the jury found a verdict in favor of the plaintiff for $700. As between the parties, as the record now stands, the effect [413] of the verdict is to establish the fact conclusively that the works of the defendants are a common nuisance. With the facts thus established by a verdict at law, it might be a question whether a court of equity could refuse to enjoin the further operation of the works as a continuing nuisance. Yet if the jury had been instructed that, under the pleadings, they must find the works were a common nuisance, to entitle the plaintiff to recover, they might well have hesitated to do so under the evidence. The weight of the evidence was the other way. An error is sometimes rendered more palpable by a consideration of the results which logically follow it. Were there nothing else in the case we would hesitate to reverse for this reason, as the narr. might have been amended below, but as the case must go back it is proper to refer to it. . The defendants’ second point if affirmed would have withdrawn the question of nuisance from the jury, and it was not error to decline it. By the defendants’ fifth point the court was asked to instruct the jury, that “ the plaintiff to recover must show an actual and substantial interference with, and annoyance to him or his property in the use and occupation of his property, and a slight and rare damage would not entitle him to recover.” This point was answered as follows: “ This point as an entire proposition is refused. While it is true that an actual and substantial interference must exist, the plaintiff may still recover for a slight and rare damage if that damage be actual and substantial, and the result or effect of a nuisance created and maintained by the defendants.” I do not regard this answer as clear or as consistent with itself. As the case must go back for a re-trial, it is proper to say that, in our opinion, the plaintiff can only recover for a substantial injury. The defendants were engaged in a lawful business. Whether they made a judicious selection of a site therefor, in view of its character and the nature of its surroundings, is a question as to which I express no opinion. But they are entitled to a reasonable enjoyment of their property, and mere trifling annoyances or injuries necessarily incident thereto would not move a chancellor to restrain their operations: Rhodes v. Dunbar, 57 Pa. 274; Huckenstine’s Appeal, 70 Pa. 102; Rex v. Tindall, 6 Ad. & E. 143; Tipping v. St. Helen’s Smelting Co., [414] 116 E. C. L. R. 608. So I apprehend a rare and trifling injury necessarily resulting from a lawful business would not sustain an action at law. It must be a real, substantial injury. Were it otherwise, many occupations could not be carried on at all in large cities. There are some injuries too slight and exceptional to be recognized as a bar to the active industries of the country. Every lawful enterprise contributes to the public good. It furnishes employment to the idle, promotes every other branch of industry, and in this way indirectly benefits the whole community. It is not unreasonable that the individual members of the community thus benefited should make some slight sacrifices for the public welfare. The fifth and last assignment alleges that the court erred in that portion of its charge in which reference was made to the Penn. Lead Co.’s App., 96 Pa. 116. We think it was an unfortunate reference for the defendants, and, under the circumstances, could not have failed to influence the jury. The cases are widely different, and, although the learned judge told the jury that “ The Pennsylvania Lead Company was engaged in smelting ore, while the present defendants are not so engaged, but in both cases the product of the works is o1> tained by the use of lead and arsenic in its manufacture,” yet the court failed to point out the essential difference between them. This is apparent from the next sentence of the charge: “ Under the authority of this decision I am of the opinion that it is a nuisance to erect and conduct works which produce like effects to that of the Pennsylvania Lead Company, although not engaged in the same business.” From this language the jury could hardly fail to draw the inference that, inasmuch as the Pennsylvania Lead Works had been declared to be a nuisance, if the defendants’ plant produced like results, it must also be a nuisance. The difference in degree was wholly overlooked. Whereas it is claimed by the defendants that if their works do throw off the noxious substances referred to in the case of the Pennsylvania Lead Company, it is in such small quantity as not to affect the general health and comfort of the neighborhood. It would be better in the next trial of this case to omit all reference to the case in 96 Pa. Judgment reversed, and a venire facias de novo awarded.