App.]

Stothfang v. Cin. Aluminum Casting Co.

while the factory is in operation. It cannot be observed when either a railroad train or a street car is passing, the noise from either being greater than it. This in a measure accounts for the absence of any witnesses in the case except those residing immediately around and close to the factory. The testimony as to the fumes, gases and noises emanating from the building is in direct conflict, except as to the low, rumbling sound. The rule in such cases. is that the nuisances must be established by clear and convincing proof to authorize injunctive relief. Bell v. Pollak Steel Co., 19 N. P., N. S., 531; Rouse & Smith v. Martin & Flowers, 75 Ala., 510, and Goodall v. Crofton, 33 Ohio St., 271.

While we adhere to the rule stated in Edwards v. Allouez Mining Co., 38 Mich., 46, and followed in the unreported case of Martin v. Farrin Lumber Co., it seems but just that some effort at relief should be made by the construction of stacks to carry the smoke and fumes above the surrounding buildings, and that the reduction of the continued rumbling sound should be attempted.

The record further discloses that the character of the manufacture at this time is different from what it was when the action was brought and tried in the court below; that then the plant was making brass containers for navy shells; that it does not use as much zinc as it did at that time; and that it has put in dust arresters and installed non-crucible furnaces, a Berkshire pneumatic molding machine and gas governors and has thus reduced the low rumble appreciably from what it was at the time of the bringing of this action. It is claimed by counsel for the company that the installation of the gas

Stothfang v. Cin. Aluminum Casting Co. [13 Ohio governor has so reduced the rumble that it cannot be said to cause substantial injury. This may be the fact, but it does not appear from the record.

The question of noise and the nuisance arising therefrom should always be considered in connection with the locality, the nature of the trade, the use of the property producing it, the time during which it exists, and its intensity and effect. 2 Wood on Nuisances (3 ed.), Sections 638, 639.

There appears to us but one important factor to be considered in this connection and that is the duration of its existence. It exists during the time the factory is in operation, and, while it is not intense, its duration is such that in order to obviate the effect the intensity should be reduced.

In the case of Bliss v. Anaconda Copper Mining Co., 167 Fed. Rep., 342, the court held that where it was established that injury had resulted to farms in the valley within the smoke zone, but that it had been lessened in extent by reconstruction of the plant so as not to render the farming unprofitable, an injunction restraining the operation of the smelter would not be granted, but that if an equitable adjustment of the rights of the parties could be made the case would be retained for that purpose. This case is cited for the purpose of showing the court's power to refuse an injunction and retain the case for the purpose of lessening, if can be, the noise and fumes incident to the operation of the factory.

The conclusion is that the location of plaintiff's house is not in an exclusively residential section; that it is in or on the line of demarcation between a business and manufacturing district and a resi

App.]

Village of Struthers v. Falabielo.

dential section; that some annoyance is caused from the operation of the factory; and that while the factory is equipped and operated with the most approved appliances known to the trade the inconvenience caused by its operation should be reduced to the minimum; that an injunction will be refused and the case retained and the company given a reasonable time within which to arrange its factory and business so as to reduce the inconvenience to the neighborhood caused by its operation. Our present inclination is that eight to ten months would be a reasonable time within which to experiment. Decree accordingly.

SHOHL, P. J., and HAMILTON, J., concur.

THE VILLAGE OF STRUTHERS v. FALABIELO, ADмx.

New trial-Verdict against two wrongdoers—Judgment rendered against one - New trial granted other— Charge to jury - Evidence-Erection of barrier by railway along road.

Where two or more persons are severally liable for a tortious act, and an action is brought and verdict rendered against all, it is not error for the trial judge to grant a new trial as to one and enter judgment as to the others.

(Decided November 2, 1920.)

ERROR: Court of Appeals for Mahoning county.

Messrs. Harrington, DeFord, Heim & Huxley; Mr. J. H. C. Lyon and Mr. Perry Robinson, for plaintiff in error.

Messrs. Nicholson & Warnock, for defendant in

error.

Village of Struthers v. Falabielo.

[13 Ohio

METCALFE, J. The plaintiff in error was one of the defendants in the case below. The action was brought by Mary Falabielo to recover damages against the village of Struthers and The Mahoning & Shenango Railway & Light Company for wrongfully causing the death of her husband, Joseph Falabielo.

At the trial of the case in the court of common. pleas judgment was rendered against both of the defendants, and both defendants filed motions for a new trial. The trial judge granted the motion of the railway company, but overruled the motion of the village of Struthers, leaving the judgment to stand as against the village.

The errors assigned are that the court erred in the charge before argument, erred in the general charge, and erred in setting aside the verdict of the jury as to defendant The Mahoning & Shenango Railway & Light Company and leaving the judgment stand as to the village.

Upon the trial of the case a section of the franchise of defendant The Mahoning & Shenango Railway & Light Company was introduced in evidence. By that section it is provided that should the roadbed of the company, running on a side of or along a traveled highway, be lower than the traveled part of the highway, so much so that the county commissioners might think it unsafe, a duty was imposed upon the company to build a barrier along the line of the railway upon notice so to do by the county commissioners.

There was evidence offered tending to show, and perhaps establishing the fact, that at some time several years prior to the accident the railway company

App.]

Village of Struthers v. Falabielo.

had built a fence along this portion of the track, which is conceded to be lower than the traveled part of the highway, and runs along the highway at the place in question, and had maintained it for some little time, but had afterwards removed it; but there was no direct evidence offered in the case tending to show, and from which it was claimed, that the commissioners had directed the company to build such barrier.

It is claimed upon the part of the plaintiff in error that such evidence tended to show that the commissioners directed the railway company to build a fence. At the request of defendant the trial judge charged the jury before argument:

"If you find that the defendant street railway company was by its franchise required to construct and maintain a barrier at certain places along the right of way, upon being directed so to do by the county commissioners, and that thereafter they did so erect and maintain for a considerable time a barrier at the point of the accident, then this would be some evidence from which you could infer that such direction was made; that such duty existed, and if said company was at the time of the accident operating within such franchise, that an obligation then rested upon the street car company to maintain such barrier."

If there was error in that charge it would be against the railway company and not against the plaintiff in error. After argument, however, the court said to the jury:

"There is no evidence that the commissioners ever designated this place as a place for a barrier."