Chicago, St. Paul, Minneapolis and Omaha Railway Company v. Swanson. defendant in error, the deceased, was engaged as a laborer in the employment of a railroad company. He was one of a gang of men attached to a construction train whose business at that season of the year was to clear off the accumulations of snow from the railroad track. One Carnes was the conductor of the train, and boss of the men and of the work in which they were engaged. He had hired most or all of them to work for the company. On the morning of the day of the accident, this gang of men, consisting of fourteen men beside Carnes, the boss and conductor, left Oakland, and proceeded north with the train to Middle Creek Station, or turn out. Here, after placing the train on the side track, the conductor with his gang of men commenced working back south clearing out the snow from the track. After completing this work through one cut of lesser dimensions, they entered the one where the fatal accident occurred. This is a cut of some four hundred feet in length, from ten to fifteen feet in depth in the center, and gradually sloping to or near a level at each end. After working through the cut at what the witnesses call flanging, and describe as cleaning the snow off of the inner surface of the rails, and having arrived at the south end of the cut, the men were ordered by Carnes, the conductor and boss, to return to the center of the cut and widen the channel through the snow, which was barely wide enough to permit trains to pass. The sides of this channel were nearly or quite perpendicular, and the snow hard. A portion of the men had reached the center of the cut and commenced work widening the channel, and some of them had not yet arrived at that point, when some of the latter discovered a train of cars coming around a slight curve which exists at or near the north end of the cut. This proved to be the regular south-bound passenger train, about nine minutes behind time, and running at a speed of twenty-five miles per hour. Eight of the men nearest the south, end of the cut, and Carnes, who was also near the south end, succeeded in getting out. Six men, who had got to work near the center of the cut, including defendant in error's decedent, were run over and killed. The questions then presented to this court by this branch of the case are, was the law correctly stated in the above instructions? And was it properly applicable to the facts as shown by the bill of exceptions? And they must both be answered in the affirmative. The deceased was in the employment of the railroad company. Chicago, St. Paul, Minneapolis and Omaha Railway Company v. Swanson. in the lowest grade of service, a day laborer. To him Carnes represented the company with all of its authority and power. It was not for him to question the propriety or timeliness of any order coming from this source, unless its execution would carry him into palpable physical danger. Carnes, the conductor of the construction train as well as boss of the gang of men, of course carried a watch regulated by some standard of time common to the entire road. It was his duty, on whatever section of the road he might be with his train or gang of men, to know when any regular train was due at that point. The deceased doubtless carried no chronometer. Had he carried one it would have been regarded as an impertinence on his part to have claimed the right to regulate his work by it. So that while it was his duty to go into the center of the cut and go to work when ordered by Carnes, it was gross negligence on the part of Carnes to order him there just as the train was due at that point. This was not only negligence on the part of Carnes, but it was negligence on the part of the railroad company whose vice-principal he was, and which could alone discharge its duty to this employee on this occasion through him. It is not deemed necessary, nor does the time at my command admit of my going through and comparing the cases cited on either side as to the right of a servant to recover from the master for injuries received by him through the negligence of an overseer or upper servant placed over him by the master. While I had sup posed the law to be pretty well settled on this subject, the earnest claim of counsel at the hearing almost induced me to doubt whether the rule, as formerly held in Ohio, had not been departed from or essentially modified even in that State. But I find upon examination that such is not the case, and that that which is held in the case of Little Miami Railroad Company v. Stevens, 20 Ohio, 415, in 1851, is substantially held in all the cases up to and including Railway v. Lavalley, 36 Ohio St. 221, in 1880. I think the rule is best stated by Judge RANNY in the case of Railroad Co. v. Keary, 3 Ohio St. 201, in the following language: "It seems to us clear in a case like the present, that as between the company and those employed to labor in subordinate situations under the control of a superior, two distinct classes of obligations arise, the one resting on the company, and the other upon the servants, and both founded upon what each, either expressly or impliedly, has agreed to do in the execution of the contract. It is the duty of the com Farrell v. Cook. pany to furnish suitable machinery and apparatus, and as they reserve the government and control of the train to themselves, and intrust no part of it to these servants, to control it and them with prudence and care. As the necessity of this prudence and care is constant and continuing, the obligation is performed only when it is constantly exercised, and they cannot rid themselves of it by devolving this power upon the conductor. If they intrust him with its exercise, in the language of Judge STORY, they in effect warrant his fidelity and good conduct. It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. If they fail to do this, and injure each other, they violate their engagements to the company, and are alone answerable for the wrongs they do. In such case there is no failure of the company to do what as between them and these servants it was understood they should do, when the servants entered the service. But they cannot be made to bear losses arising from carelessness in conducting the train, over which their employers gave them no power or control, either separately or collectively, until we are prepared to say that justice and public policy require the consequences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences." I think the law thus established and laid down in Ohio prevails substantially throughout the western States and will ultimately prevail everywhere. The judgment of the District Court is affirmed. The other judges concur. Judgment affirmed. FARRELL V. Cook. (16 Neb. 483.) Nuisance — injunction — keeping of jacks and stallions. The keeping of jacks and stallions and standing them for mares near and in plain view of an inhabited dwelling-house may be prohibited by injunction.* A CTION to abate nuisance. The opinion states the case. The plaintiff had judgment below. * See Marsan v. French (61 Tex. 173), 48 Am. Rep. 272, and note, 274. VOL. XLIX-91 Farrell v. Cook. G. R. Chaney, for plaintiff in error. Case & McNeny, for defendant in error. MAXWELL, J. This action was brought in the District Court of Webster county to abate a nuisance. A demurrer to the petition was overruled in the court below and a perpetual injunction granted. The grounds of the demurrer are: 1st. That the plaintiff has not legal capacity to sue; and 2d. That the facts stated in the petition are not sufficient to constitute a cause of action. It is alleged in the petition that in May, 1880, the defendant in error (the plaintiff below) "became and ever since has been and now is the owner of lots 7, 8, 9, in block 25, in the town of Red Cloud; that the plaintiff has erected on said lots a dwelling-house of the value of $1,000 and otherwise improved said premises, and that he resides in the dwelling-house aforesaid with his family, and has so resided since the month of June, 1880; that his family consists of his wife, two daughters and one son; that in February, 1884, the defendant (plaintiff in error), John Farrell, purchased lots 16, 17, 18 and 19, in block 26, in said town of Red Cloud, and has since occupied the same; that said lots are directly across the street in front of the dwelling of the plaintiff above mentioned, in full view thereof, and not more than one hundred feet from said dwelling; that soon after the defendant purchased said lots he began to use and permit others to use the same as a place for standing stallions, jacks and other animals; that the defendant is the owner of a feed stable, which is situated on a portion of said lots, and permits and hires out that portion of said lots not covered by said stable for the uses and purposes aforesaid; that owners of various horses and jacks are, with the consent and permission of defendant, using and occupying said premises as a place for putting jacks and stallions to mares, in full view of plaintiff's said dwelling and to the great inconvenience and discomfort of the plaintiff and his family," etc. [Omitting a minor question.] A nuisance may be defined as whatever is injurious, offensive to the senses, indecent or an obstruction to the free use of property so as materially to interfere with the comfortable enjoyment of life or property. Regina v. Gray, 4 Fost. & Fin. 73; State v. Purse, Farrell v. Cook. 4 McCord, 472; Nolan v. Mayor, 4 Yerg. 163; Pickard v. Collins, 23 Barb. 444-453; Hackney v. State, 8 Ind. 494; State v. Taylor, 29 id. 517; 4 Wait Act. and Def. 727. It is any thing that unlawfully worketh hurt, inconvenience or damage. 3 Bl. Com. 216; 2 Bouv. Law Dict. 245; Com. v. O. C. R. Co., 14 Gray, 93; Coker v. Birge, 9 Ga. 425. It is a term applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to the right of another or of the public, and producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage. Wood Nuis., § 1. There must not only be a violation of a right, but an essential inconvenience, annoyance, or discomfort must result therefrom. Id., § 9. A party is entitled to the free use and enjoyment of his own property but he must so use it as not to interfere with the rights of others. Enjoy your property in such a manner as not to injure that of another person, is the maxim of the law. That the plaintiff in error has violated this rule is clearly shown by the petition, and also that the defendant in error has sustained special injury by such violation. In Hayden v. Tucker, 37 Mo. 214, it was held that the keeping and standing of jacks and stallions within the immediate view of a private dwelling was a nuisance; so too the keeping of a brothel near one's dwelling. Hamilton v. Whitridge, 11 Md. 128. We have no doubt that the plaintiff below is entitled to an injunction as prayed for in his petition. The demurrer therefore was properly overruled and injunction granted. The judgment is affirmed. The other judges concur. Judgment affirmed |