Commonwealth v. Miller , 139 Pa. 77 ( 1891 )

OPINION,

Mb. Justice Williams:

The defendants own and operate a refinery where crude petroleum and its products are prepared for market. There are four acres within the enclosure fronting on the Ohio river. The Pittsburgh & Western railroad passes in front of it, along the river’s edge. The Cleveland & Pittsburgh railroad runs upon the street directly in the rear. The city of Allegheny, like its sister city Pittsburgh, owes its growth and prosperity to the extent of its manufacturing interests, and the river front is almost wholly given over to these great industries. The indictment charges that the defendants’ refinery is a public and common nuisance, because of the emission therefrom of certain noxious and offensive smells and vapors, and because the oils and gases stored and used therein are inflammable, explosive, and dangerous. The jury, under the instructions of the court, found the defendants guilty, and the sentence which has been pronounced requires the abatement or destruction of a plant in which some three hundred thousand dollars are said to be invested, and which gives employment to seventy-five men. The assignments of error are quite numerous, but the important questions raised are few.

The first four assignments, the sixth, ninth, tenth, and sixteenth, may be considered together, as they relate more or less directly to the same subject. The learned judge had his attention directed by the written points to the definition of a public nuisance, and to the circumstances under which the defendants’ refinery had been established and maintained for many years; and he instructed the jury that the character of the location where the refinery was established, the nature and importance of the business, the length of time it had been in operation, the capital invested, and the influence of the business upon the growth and prosperity of the community, were no defence to an indictment for nuisance. Among other expressions used by him are the following: “ It is no defence to an indictment for a common nuisance that the business complained of has been in operation many years.” “ I do not think the size of an establishment makes any difference.” And again : “Neither is it a defence in any measure that the business is a useful one,” etc. If it had been an admitted or an established fact that the business of the defendants was a common nuisance, and they had attempted to justify its maintenance, these instructions would have been appropriate; but, the question before the jury was whether the business was a nuisance. The decision of that question depended upon a knowledge of all the circumstances peculiar to the business, the place, its surroundings, and the employments of the persons in the vicinity. While no one of these, nor all together, would justify the maintenance of a nuisance, they might be sufficient, and they certainly were competent evidence from which the jury might determine whether the defendants’ refinery was a common nuisance at the place where it was located, and this was the question to be determined by the trial. They might make, therefore, or contribute to make, a defence to the indictment trying. This distinction between an effort to justify an admitted or established nuisance, and a denial that the business complained of amounts to a nuisance, was evidently in the mind of the learned judge, but, in the haste that attends jury trials, he failed to place it clearly before the jury. He did say that the facts referred to had “ weight, and are to be considered in determining the degree of the injury produced, and whether the effects are so annoying, so productive of inconvenience and discomfort, that it can be said to be really so prejudicial to the public as to be a nuisance,” but, following an explicit statement that these same facts were “ no defence to an indictment for erecting and maintaining a nuisance,” such as. they were then trying, the jury was left without an adequate presentation of the defence.

That such facts are proper for consideration and may make a defence, has been long and well settled: Wood on Nuis., § 430. The same rule was applied in this state in Huckenstine’s App., 70 Pa. 102; and in Commonwealth v. Reed, 34 Pa. 275. The character of the business complained of must be determined in view of its own peculiar location and surroundings, and not by the application of any abstract principle: Wood v. Sutcliffe, 8 Eng. L. & E. 221. In the case last cited, Lord referred to a case at nisi prius, in which he

had instructed the jury to consider, not only whether the quantity of smoke complained of would amount to a nuisance, considered abstractly, but “ whether it is a nuisance to a person living in Shields,” which was the name of the town in which the business was conducted. It was in this respect that the instructions complained of in the first, second, and third specifications were inadequate. They gave the general rule without the qualifications which the situation of the defendants’ refinery entitled him to. The right to pure air is, in one sense, an absolute one, for all persons have the right to life and health, and such a contamination of the air as is injurious to health cannot be justified; but; in another sense, it is relative, and depends upon one’s surroundings. People who live in great cities that are sustained by manufacturing enterprises must necessarily be subject to many annoyances and positive discomforts, by reason of noise, dust, smoke, and odors, more or less disagreeable, produced by and resulting from the business that supports the city. They can only be relieved from them by going into the open country. The defendants had a right to have the character of their business determined in the light of all the surrounding circumstances, including the character of Allegheny as a manufacturing city, and the manner of the use of the river front for manufacturing purposes. If, looked at in this way, it is a common nuisance, it should be removed; if not, it may be conducted without subjecting the proprietors to the pecuniary loss which its removal would involve.

The fifteenth assignment relates to the definition of a “reasonable doubt.” The learned judge said: “ It is such a doubt as would influence or control you in your actions in any of the important transactions of life.” He did not say that a doubt that would cause one to pause and hesitate, was, if fairly derived from the evidence, a reasonable one within the meaning of the criminal law, but that it must be one that would control one’s conduct in the important transactions of life. Our actions are determined by the preponderance of considerations. We doubt, hesitate, examine, balance the argument for and against the given action, and act as the preponderance indicates. A doubt that would control our actions in the important transactions of life, would be one that was so strong as not to be overcome by the balancing process. Such a doubt would be practically an unconquerable one. It would lead us, not simply to refrain from acting, but to act.

The twelfth and thirteenth assignments relate to the request of the defendants that the jury be permitted to view the alleged nuisance, and see its situation and surroundings and observe its operations, before passing upon them. This was a reasonable request; and, in view of the magnitude of the interests involved, it is difficult for us to understand why it was not granted by the court. It was, however, a matter fairly within the discretion of the court, and we cannot say that it was an abuse of that power to refuse the application upon anything now before us. Much the same thing may be said of the action of the court in refusing permission to defendants’ counsel to comment upon the action of the commonwealth in objecting to the proposed view of the premises. So much depends on what is said, and the connection in which it stands, that it should be a clear case of infringement upon the right of counsel to comment upon the incidents of the trial, to induce us to interfere with the discretionary control of the trial, judge. It appears by the thirteenth assignment that as counsel for the defendants were addressing the jury they proposed to comment on the action of the commonwealth’s counsel in refusing to join in the request for an examination of the premises by the jury, and in objecting thereto, and that counsel for the commonwealth “ objected to the propriety of such comment.” The objection was sustained, and the comments were not allowed to proceed. The fact that an application was made by the defendants, objected to by the commonwealth, and denied by the court, was within the knowledge of the jury, because it had transpired, as we understand, in their presence. It was a fact that for some purposes might properly be referred to, as an incident of the trial, by counsel, but, like other facts, it might be commented upon in an improper manner, or used for an improper purpose; and, in the absence of precise information upon the subject, we must presume that the learned judge exercised a proper supervision over the argument.

We think the indictment is sufficient in form to sustain a verdict, and the verdict rendered is applicable to all the counts, and was, no doubt, so intended by the jury, but, for the reasons given, the judgment cannot be sustained.

Judgment reversed.