Pettit v. New York Central & Hudson River Railroad , 87 N.Y. Sup. Ct. 86 ( 1894 )

PER CURIAM.

We think the judgment should be affirmed, for the reasons stated by the learned trial judge in granting the motion for a nonsuit; and see Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046. The trial judge was correct in holding that the evidence did not show that the pump and the operation of it were a public nuisance. We think, on the evidence, he was not. required to submit the question as to its being such to the jury; hence the case of Morton v. Mayor, etc., 140 N. Y. 207, 35 N. E. 490, and kindred cases cited by appellant, do not apply. All that was shown was that, when the wind blew in a certain direction and in certain conditions of the atmosphere, the smoke from the defendant’s pump building settled down on the highway. It did not appear how often this happened. If defendant’s building and its operation were a nuisance, no railroad company could run its trains along or near a highway or through a public street, because, when the wind should blow in a certain direction and in certain conditions of the atmosphere, the smoke from its engines would settle down, as it often does, on the street. For the same reason, a manufacturing establishment could not be located on or near a highway or street. Morton v. Mayor, etc., supra, was a case where the city placed a building with pumping machinery on its premises, adjoining those of plaintiff, and it was shown that the noise and vibration produced by the operation of the machinery rendered plaintiff's premises untenable. The other cases cited by plaintiff are of the same character. They were all cases of undoubted nuisances, the effect of which, in each instance, was to practically deprive the complaining party of his property. Those authorities were very different from this case, where all that appears is that, when the wind is in a certain direction, occasionally (how often is not shown) the smoke from the defendant’s structure settled down on the highway. The judgment should be affirmed, with costs. All concur.