On appeal from the Passaic District Court of the county of Passaic.
For the plaintiff-respondent, Charles J. Bodner.
For the defendant-appellant, Milton M. Unger.
Before Justices Trenchard, Bodine and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiff and defendant are both engaged in industrial manufacturing operations in the same locality, their factories being on opposite sides of Ackerman avenue, Clifton. The action was for damages alleged to have been suffered by the plaintiff because of smoke, cinders and soot discharged on its plant, machinery and manufactured goods, from the premises of the defendant. The trial court, sitting without a jury, rendered a verdict for the plaintiff for $500.
The appeal is based upon two points. First, because there was no evidence upon which the judgment can be sustained. Second, because the court erred in not granting motions for nonsuit or directed verdict for the defendant.
We do not entertain those views.
The state of demand sets out in one count two allegations on which the action was based. Those were that defendants maintained an absolute nuisance and was negligent in the operation of its factory. The case was tried on those theories.
The testimony was that soot and cinders from the defendant's factory chimney were constantly falling and coming into and onto the plaintiff's factory; that it came in substantial quantities making necessary daily dusting and cleaning in
order to prevent damage to its manufactured goods. That despite protective measures its goods were damaged by the dirt and some were rejected by its customers and returned as unsatisfactory; certain machinery was damaged and repairs to it made necessary. In addition, damages were claimed because of the cost of labor in dusting and cleaning.
The defendant sharply disputed the question of liability producing testimony that its fuel was properly used and fully consumed and that the soot and cinders did not come from its chimneys. It ...