#### REDD v. COTTON MILLS.

(Filed November 15, 1904).

1. NUISANCES.

The blowing of cotton factory whistles is not a nuisance per se.

2. NUISANCES — Evidence—Injunction—Question for Jury.

Where the evidence is not sufficient to establish a nuisance, an injunction will not be granted to restrain the act until it is established to be a nuisance by a verdict of a jury.

ActioN by E. M. Redd against the Edna Cotton Mills, heard by Judge W. B. Allen, at AYinston, N. C. Erom a judgment for the defendant the plaintiff appealed.

Watson, Buxton & Watson, for the plaintiff.

Glenn, Manly & Hendren and Scott & Beid, for the defendant.

Montgomeey, J.

This action was brought by the plaintiff against the defendant for the recovery of damages alleged to have been sustained by means of a nuisance maintained by the defendant and to have the nuisance abated by injunctive process. The injury for which damages are claimed is alleged to be to the health of the plaintiff’s family and himself, and the nuisance the blowing of a steam-whistle at the early hours of 4:30, 5.30 and 5 :50 o’clock A. M. for the space of from two to seven minutes duration. The whistle is attached to the engine of the defendant company and its blasts are declared to be “long, shrill, shrieking, discordant, startling, terrific; awakening the plaintiff and his family, disturbing his and their sleep and seriously interfering with the reasonable enjoyment of their home and seriously impairing their health. Before the defendant had answered the plaintiff served a notice upon defendant that a motion would be *343made before tbe Judge of tbe district for an order restraining tbe defendant from blowing tbe whistle of its engine between tbe hours of 9 P. M. and 6:30 A. M. IJpon tbe plaintiff’s complaint and affidavits and tbe defendant’s affidavits the motion was denied and tbe plaintiff appealed.

Prom tbe plaintiff’s complaint and affidavits there was evidence going to show that for ye.ars tbe defendant’s. whistle bad been blown at' 4:30, 5 :30 and 5 :50 o’clock A. M.; that tbe blasts were from two to seven minutes long; that they were shrill, startling, shrieking and terrific; that tbe night’s rest of tbe plaintiff and several other families was broken up by tbe blasts of tbe whistle, tbe plaintiff’s health impaired, and numbers of other families affected with nervousness. Tbe evidence of tbe plaintiff further tended to show that tbe property of tbe plaintiff and others, situated as bis and theirs was in respect to tbe mill, bad depreciated in value by reason of tbe blowing of tbe whistle. Tbe evidence afforded by tbe affidavits of tbe defendant tended to show that tbe blowing of tbe whistle did not disturb tbe sleep of tbe affiants or produce discomfort in their homes; that tbe blasts of tbe whistle were ’useful to tbe defendant in tbe conduct of its business; that tbe property in tbe neighborhood bad not been impaired in value; that tbe evidence contained in plaintiff’s affidavits was that of bis friends and kinspeople, and that bis health bad not been affected by tbe blasts of tbe whistle, but was due to other causes, be being an extremely nervous and excitable man.

We think bis' Honor was right in refusing to grant tbe injunction. Tbe blowing of whistles at factories to regulate and direct tbe order of work may be necessary to tbe proper conduct of business, certainly it is not a nuisance per se. Such sounds and noises as these whistles are capable of making can become nuisances, however, and tbe protecting arm of tbe law can be invoked to prevent such. Injury to health *344and destruction of the comforts of one’s borne can be accomplished by frightful noises just as well as by means of noxious and offensive odors. Dorsey v. Allen, 85 N. C., 358, 39 Am. Rep., 704. But the courts are always slow to interfere by injunction in the conduct and management of business enterprises. Of course where a nuisance is established by the evidence, no private enterprise,for the mere purpose of bringing gain to its owner can be allowed to destroy one’s home or to impair his health. Both are irreparable injuries, and no damage can compensate a man for the destruction of his home or for the undermining of his health. Clark v. Lawrence, 59 N. C., 83, 78 Am. Dec., 241; Barnes v. Calhoun, 37 N. C., 199.

In the present case, however, the evidence does not satisfy us that the blowing of the whistle by the defendant amounted to a nuisance. In such a case under the old practice, that is, where the Court of Equity was not satisfied upon all the evidence that the thing complained of was a nuisance, there would be no interference or action until the fact of “nuisance” had been established by law. Simpson v. Justice, 43 N. C., 115. So here we think the jury by their verdict ought to pass upon the evidence and find, under the instructions of the Judge, whether or not the manner in which the whistle is blown was a nuisance, that is, whether or not the plaintiff’s health and home have been impaired and injured by the blowing of the whistle.

No Error.