STATE

บ.

HEIDENHAIN

(Louisiana Supreme Court, April 21, 1890.)

Street Railways-Validity of Ordinance Prohibiting Smoking in Cars.-The ordinance adopted by the council of the city of New Orleans prohibiting smoking in the street cars is constitutional and valid. The police power delegated to the city in § 7 of the charter gives ample authority for the enactment of the ordinance.

Nuisance-Discretion of City in Determining What Is.--There is much discretion left to a municipal corporation for determining what is a nuisance, and the exercise of this discretion will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights, and transcended the authority granted to it. To determine what a nuisance is, is a question of fact.

Henry Heidenhein, E. H. McCabb and Griault Farrar, for appellant.

F. McC. Hyman, for the state.

Case stated.

MCENERY, J.-The defendant appeals from a conviction by the first recorder's court of the city of New Orleans for a violation of ordinance No. 4,197, adopted January 2, 1890. For two distinct and separate violations of the ordinance, he was for each violation sentenced to pay a fine of $25, or suffer 30 days' imprisonment. The ordinance is as follows: "Whereas, the custom of permitting smoking in the street cars of this city is a most vile and objectionable one to the majority of our citizens, especially to the ladies, who are entitled to that courtesy and consideration due to their sex and whereas, this alone, of all the cities of the Union, allows such a discomfort to those of its citizens who ride in the public cars: Be it resolved that, from and after the promulgation of this ordinance, smoking in any street car of this city is hereby prohibited, and shall hereafter be considered as a misdemeanor, and any one so offending, or any driver of a street car who permits such an offense, shall be fined not less than $5, nor more than $25, or imprisoned not less than five days, or more than thirty days, recoverable by the recorder of the district in which the offense shall be committed. And be it further resolved, that one-half of any money thus recovered shall be the property of the party giving such information and testimony to the recorder as will lead to the conviction of the offender. Be it further resolved, that all

laws or parts of laws in conflict with the above be, and the same are hereby, repealed. Adopted by the council of the city of New Orleans, January 2, 1890."

The defense is (1) the unconstitutionality of the ordinance; (2) that the city of New Orleans is without power or authority, under her charter, to pass such an ordinance; (3) that the ordinance in question is vague, indefinite, and insufficient in its terms, and does not define what acts shall constitute a violation or infringement; (4) that it imposes upon the drivers of street cars duties and functions beyond the powers of the common council.

The ordinance does not deprive the defendant of personal liberty, nor does it invade any right of private property. Smoking is not made an offense, but it is prohibited only in a certain designated place. The third and fourth grounds are without merit. The ordinance makes it specifically an offense to smoke in a street car. The street car drivers and the car companies are not complaining of the ordinance.

The several street railroad companies have adopted the above ordinance as a part of their regulations, and prohibited smoking in all their cars immediately after the passage of the ordinance. When the defendant entered the car, there was conspicuously displayed a card notifying him that smoking was prohibited in that particular car.

Smoking in street carsNuisance.

A nuisance belongs 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 a 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 is no doubt of the fact that smoking in the street cars in the city of New Orleans had caused to a great majority of the people using them material annoyance, inconvenience, and discomfort. This is particularly so in the winter season, when the cars are closed. There is not only discomfort, but positive danger to health, from the contaminated air. The record establishes these facts. Smoking, in itself, is not to be condemned for any reason of public policy. It is agreeable and pleasant-almost indispensable-to those who have acquired the habit; but it is distasteful and offensive, and some times hurtful, to those who are compelled to breathe the atmosphere impregnated with tobacco in close and confined places. There are many other habits in manners and conduct which in some localities and places are not objectionable to the public, but when committed elsewhere may become of

fensive, and the subject of penal municipal legislation. Smoking may be classed among these subjects of legislation by the municipal corporation.

to adopt ordi

nance.

The police power delegated to the city of New Orleans in its charter gave ample authority to the city to maintain its cleanness and health; to maintain good sanitary conditions in the streets, public places, and build- Power of elty ings; to suppress all nuisances; and to impose a fine and imprisonment for the violation of ordinances enacted in pursuance of this delegated power. Sec. 7, Act 20, of 1882. The authority to abate nuisances is a part of the police power vested in all large and populous cities. To determine what is a nuisance is a question of fact.

The city council of New Orleans is, to a limited extent, clothed with legislative authority; and it is vested with that discretion within its powers common to all legislative bodies. Within the exercise of this legislative discretion, it has the authority to determine what is a nuisance, and to enact the necessary ordinances to suppress it. Kennedy v. Phelps, 10 La. Ann. 227; Mayor, etc., of Monroe v. Gerspach, 33 La. Ann.

Much is therefore left to the discretion of the municipal corporation in determining what is a nuisance, and the discretion thus exercised will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights, and transcended the power given to it. Dill. Mun. Corp. $ 379. In the instant case, no private right, either of person or of property, has been violated or invaded. The city council, in passing the ordinance, did not transcend its powers. It had authority, under § 7 of its charter, to provide for the public health. It can therefore require in public places, theaters, halls, etc., that there shall be ventilation for a supply of fresh air; and, in order to preserve the public order and health, and under the general police authority in said § 7, it can compel the owner of public halls and theaters to provide means to prevent fire, and to provide fire escapes in case of fire, and, in pursuance of the same power, it can, in order to preserve pure and fresh air in crowded halls, and to prevent fire, prohibit smoking in the same. The same authority and the same reasons apply in the prohibition of smoking in street railway cars. It is essential to health and to comfort to have pure air in them as in any other crowded place.

The facts in the case of State v. Bright, 38 La. Ann. 1, have no application to this case. The former involved the question of the power of the city to punish a property owner for not keeping his sidewalks clean and in repair. This court decided that there was no authority for the city to declare the failure 43 A. & E. R. Cas.-19

to raise and repair the sidewalks a misdemeanor, and to fix a penalty to the same, as there was an absence of such authority in 7 of the charter.

The city council had ample authority, under § 7 of the charter, to enact the ordinance under which the defendant was convicted.

Judgment affirmed.

POPE

v.

KANSAS CITY CABLE R. Co.

(99 Mo. 400.)

Cable Railway-Personal Injuries-Sufficiency of Complaint.-A complaint which alleges that the deceased in the exercise of proper care and caution was crossing defendant's railway track, "when the defendant by its agents and servants negligently, carelessly, and wrongfully ran its car against the wagon of deceased, overturned the same and killed him," states a cause of action, and will be sustained on appeal when no objection to it was taken in the trial court.

Same Pleading-Particular Act of Negligence Causing Injury. Such complaint is not open to the objection that it does not specify the particular act of negligence which caused the injury.

Same-Evidence that Defendant Operated Railway.-Where the evidence for the plaintiff in an action against a cable railway company shows that during the month before the accident the defendant was operating the railroad, and the defendant does not stand on a demurrer to the evidence, but proceeds to introduce evidence on the merits, which tends indirectly to show that it was operating the road at the time of the accident, and treats the case as if it were a conceded fact that the cars which caused the accident were being operated by its servants, it is not error for the court to refuse to give an instruction for the defendant in the nature of a demurrer to the sufficiency of the whole evidence at the close of the case. Same-Failure of Gripman to Prevent Accident.-Where the evidence for the plaintiff tends to show that the gripman of a cable car which ran into deceased's wagon and thereby killed him, discovered the plaintiff in the act of crossing the track at such a distance that he might have checked or stopped the car in time to have avoided the collision, the case is properly submitted to the jury.

Same-Duty to Keep Lookout-Parallel Tracks. An instruction that it is the duty of those operating a train to keep a vigilant watch on the track ahead that they may discover persons on the track in time to avoid injuring them, is not open to the objection that it is calculated to mislead the jury, although it appears that there are two parallel tracks near together.

APPEAL from Circuit Court, Jackson County.

Johnson & Lucas, for appellant.

John W. Beebe, for respondent.

BRACE, J.-The plaintiff is the widow of Nelson M. Pope,

Case stated.

who was killed in a collision between a wagon and team that he was driving and a train of cable cars, near the corner of Ninth street and Grand avenue, in the City of Kansas, on the 1st day of July, 1886. In this action she seeks to recover $5,000 damages for his death, alleging as a cause of action that defendant was operating said cars at the time of the accident, and that her husband, in the exercise of proper care and caution, was crossing its railway track, "when the defendant, by its agents and servants, negligently, carelessly, and, wrongfully ran its car against the wagon of said Pope, overturned the same, and killed him."

1. The sufficiency of the petition is questioned for the first time in the brief of counsel in this court. In the trial court

petition.

Further

no objection was taken to it, either by demurrer or objection to the introduction of evidence, nor Suffelency of was there a motion in arrest of judgment. That it states a cause of action there can be no doubt. than to ascertain this fact, we will not look into it. The objection urged against it, however, that it does not specify the particular act of negligence which it is claimed caused the injury, is answered by the cases of Sullivan v. Missouri Pac. R. Co., 97 Mo. 113, 42 Am. & Eng. R. Cas. 34; Johnson v. Missouri Pac. R. Co., 96 Mo. 340, 37 Am. & Eng. R. Cas. 128. 2. It is urged that the demurrer to plaintiff's evidence ought to have been sustained, because there was no testimony showing that the defendant was operating the train

evidence that defendant was operating rail.

by which the deceased was struck. On the trial Sufficiency of neither this nor any other reason was assigned as ground of the demurrer to the evidence. The defendant did not stand on its demurrer, but pro- road. ceeded to introduce its evidence on the merits. It did appear, however, from plaintiff's testimony, that in the month of May or June, just before the accident, the defendant was operating the cable train on this railway; the evidence of the defendant indirectly tended to show that they were operating the road at the time of the accident; and the whole examination by defendant of its witnesses, as well as the instructions it asked of the court, treated the case as if it was a conceded fact that the defendant's servants were operating the cars on this railway on the day the accident happened. In such state of case justice and fair dealing in the trial of cases between parties litigant and the trial court require us on appeal, where such a defect is first specifically pointed out, to make every reasonable and fair inference in favor of the sufficiency of the evidence to prove such fact. The principle that a state of facts once shown to exist will be presumed to continue until the contrary is shown, is fairly applicable to