Gavigan v. Atlantic Refining Co.

Citations

• 186 Pa. 604
• 40 A. 834
• 1896 Pa. LEXIS 1029

Syllabus

<p>Nuisance — Storage of petroleum — Evidence—Question for jury.</p> <p>In an action to recover damages for a nuisance, it appeared that defendant, an oil company,’ purchased a lot adjoining plaintiff's house, in a residential neighborhood, and erected thereon tanks and a warehouse for the storage of carbon oil and gasoline. The evidence on behalf of the plaintiff, although in all respects substantially contradicted by the testimony on behalf of the defendant, tended to.show that the odor from the oil and gasoline made the occupation of plaintiff’s house extremely uncomfortable, producing nausea, compelling him to close the windows in hot summer nights in order to secure sleep, preventing him from occupying a porch on one side of his house, injuriously affecting his health; and, also, that waste oil was permitted to percolate through the earth, saturating the soil near his house, and running into his cellar. Some of the evidence showed that these conditions continued after the suit was brought. The court instructed the jury that if they believed the evidence for the plaintiff they should exercise their best judgment and soundest discretion as to the damages, considering the injury to the reasonable use of the property, and the effect upon the plaintiff’s health, and his actual physical discomfort, but allowing nothing for injury to the real estate. Held, (1) that the defendant’s establishment was not a nuisance per se; (2) that whether it was a nuisance at all depended wholly on the proof; (8) that the question in the case was not one of negligence or no negligence, but of nuisance or no nuisance; (4) that all that- was necessary for the plaintiff to show was that the defendant selfishly carried on a lawful business in a populous neighborhood greatly to plaintiff’s injury; (5) that there was sufficient evidence in the case that the injury complained of was peculiar to the plaintiff, and distinguishable from that suffered in common by others in the same neighborhood;