Daugherty v. Southern Cotton Oil Co.

HART, J., (after stating the facts). The issue raised by the appeal is whether or not the court erred in directing a verdict for appellee. The use of a steam whistle in a manufacturing establishment or gin is not a nuisance per se, but it may be used so as to become such. Thompson on Negligence, vol. 1, par. 1261. In the application of this principle it has been frequently held that although it is lawful for a manufacturing establishment to maintain a steam whistle, that whistle must be used with ordinary care and due regard for the rights of others, and if by the negligent use thereof horses are frightened and caused tó run away and inflict injury, the owner of the establishment is liable for the resultant damages. On the other hand, it may be said that while the traveling public is entitled to make free use of the streets of the city and that an adjoining property owner has no right to so use his property as unreasonably to interfere with the public enjoyment of this right, still the doctrine is settled that it is not negligence per se to own and operate, near a public highway or street, a gin or other industrial plant in the necessary and reasonable operation of which loud noises are produced. Under modern conditions the operation of gins near a public highway or street, not only subserve the convenience of the public, but are matters of necessity. The use of the steam whistle in giving signals and for other necessary purposes in connection with operation of the plant becomes wrongful only when its use is attended with negligence. It is true that the horse became frightened at the sound of the steam whistle and ran away throwing the occupants of the buggy with great violence on a concrete sidewalk and that he was a gentle and well broken horse; but it will not do to say that under these circumstances appellee was guilty of negligence. If we should hold that because it was impossible that a gentle and well-broken borse should become frightened at the noise of a steam whistle of the kind ordinarily in use when used in an ordinary manner, the effect of such holding would tend to prevent gins and other plants using steam, from establishing and operating their plants in such places, and thereby greatly retard the progress and development of the country. In the present case so far as the record discloses the whistle was blown in the ordinary way for a useful purpose in the conduct of appellee’s business. Under the facts disclosed in the record the blowing of the whistle was one of the usual noises which attend the operation of a gin and to which persons traveling public highways and streets must submit. The principle is well stated in Goodin v. Fuson et al. (Ky.), 60 S. W. 293, as follows: “Again, if the operation of the mill frightened the horse, and placed the appellant in a perilous position, and if, by stopping the mill, they could have, after discovering his peril, avoided the injury, then it was their duty to do so. It seems to us that the court properly instructed the jury. It certainly can not be said to be per se negligence to erect and operate a sawmill within sixty feet of a county road. If this be true, then it would be hazardous to erect any manufacturing establishment on a highway or public street', because, if a horse should become frightened, and injure some one, then the owners or proprietors would be liable in damages therefor. Some horses might become frightened at a bicycle, automobile, or a threshing machine on a public highway, and it would not do to say, because it was possible that it might become frightened thereby, it was per se negligence to operate them along a public highway or street. To hold that the erection of a sawmill or a manufacturing establishment near a public highway or street is per se negligence would be to circumscribe the business affairs of life, and retard the progress of the age. The usual noises which attend the operation of machinery in mills and manufacturing establishments situated on public highways and streets are such to which the traveling public must submit. ’ ’ It follows that the judgment must be affirmed.