Chicago, E. & L. S. R. Co. v. Darke

Opinion of the Court, Gary, P. J. The Chicago, Evanston & Lake Superior Ry. Co. was a defendant, and is an appellant with the St. Paul. The brief here is only on two points. All others will therefore be left unnoticed. Wabash, etc., Ry. Co. v. McDougal, 113 Ill. 603; Seaton v. Ruff, 29 Ill. App. 235. The action is for injury to the dwelling houses and lots of the appellee, by smoke, cinders, dust, soot, etc., from locomotives of appellants, and by the noises made at an engine house, and on side tracks, where locomotives are kept when not in use. The first point made is that the court erred in refusing this instruction: “ The court further instructs you that the plaintiff can not recover in this action, any damages to her said property, alleged to have been caused by reason of any noise, confusion or disturbances, occasioned by the operation of the defendants’ trains in the yards, and upon the tracks of said defendants, or any of the unsightly structures on the defendants’ premises in front of the plaintiff’s property.” As to unsightly structures, it is doubtless true that an owner on one side of a street may disregard the aesthetic taste of his neighbor over the way, but he may not with impunity keep him awake nights by noises. Laws of Nuisances, Wood, Ch. 18. And as the noise prevents the enjoyment of the property (in some measure) it is a damage to the property. The other point, that there could be no joint judgment against the two roads (there being no joint operation) was not made below, either by instructions offered, or grounds assigned for a new trial. It can not be first made here. The judgment is affirmed.