#### L. L. STATON v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 17 November, 1910.)

1. Appeal and Error — Issue, New Trial as to One.

A partial new trial having been granted on a former appeal in this case, restricted to the issue whether or not the defendant railroad company so used one of its spur tracks as to be a nuisance, to plaintiff’s special damage, the lower court properly restricted the trial to this issue alone.

2. Railroads — Spur Track — Nuisance — Necessary Acts — Instructions.

In an action for special damages for the improper use for freight trains by defendant railroad company of its spur track in front of, or adjacent to, plaintiff’s residence, the spur not being at a freight depot, it was error in the trial court to charge, in effect, that the acts complained of would constitute an actionable nuisance if unnecessarily done in the operation of the road, when the facts recited would constitute a nuisance in the use of a spur track for such purposes.

Appeal by plaintiff from Guión, J., at tbe April Term, 1910, of Edgecombe.

Tbe facts are sufficiently stated in tbe opinion of tbe court.

G. M. T. Fountain & Son for plaintiff.

F. S. Spruill and J. L. Bridgers for defendant.

Clark, C. J.

Tbe facts in tbis case are fully set out in tbe former appeal, Staton v. R. R., 147 N. C., 429, and need not be repeated bere. In ordering tbe new trial on tbat appeal tbe Court said, “Tbe issue and evidence will be confined to tbe allegation tbat tbe defendant bas, witbin three years prior to tbe commencement of tbis action, so used tbe spur track and tbe street, in violation of its duty, as to constitute a nuisance, by wbicb tbe plaintiff bas sustained special damages as tbe owner of tbe dwelling and premises abutting on tbe street.” ,

Tbe Court affirmed tbe action below in other respects, and granted a partial new trial restricted to tbis issue. On tbis trial, tbe judge below submitted tbe following issue, “Has tbe defendant, witbin three years prior to tbe commencement of tbis action, so used tbe spur track and tbe street as to consti*433tute a nuisance?” This is in exact conformity with the direction of this Court, and the first exception must be overruled.'

But we think there was error as pointed out by exception 9. The plaintiff requested the court to charge: “If you shall find from the greater weight of evidence that at any time within three years before 26 September, 1906, the defendants, or either of them, shoved cars on the spur track in front of, or adjacent to, plaintiff’s residence, the same not being a freight depot, to be unloaded or loaded within 90 feet of plaintiff’s door, and frequently left theatrical cars to be unloaded and loaded, and left steam engines on said track during the night, so that the escaping steam, the ringing of bells, and the sounding of whistles at (unnecessarily) early hours in the morning, and the noises of employees during the night and the early morning, the loud puffing, the (unnecessary) scattering of cinders, sparks, and dust, and the screeching of the wheels on the curve of the said track break the rest of the plaintiff and his family and envelope his dwelling and premises in smoke, dirt and noxious gases, and smells to their annoyance (unnecessarily) this would constitute actionable nuisance, and you will answer the first issue, Yes.”

The Court gave this prayer, but modified it by inserting the words which appear above in brackets, and added at the end the following, “If not unnecessary, but required in ordinary operation, No.” The state of facts above recited would constitute a nuisance on a spur track, if found to be true. It was error to modify the prayer by inserting the words “unnecessary,” and “unnecessarily,” and by adding at the end that such conduct would not be a nuisance if necessary in the ordinary operation of the road. Such acts, if done at the depot or yard of the defendant would not be a nuisance if necessary in the ordinary operation of the road. But this was a spur track, built to an ice plant, and was not intended for such purposes and conduct as is set out in the prayer. Such acts as occurred in the reasonable and necessary operation of said spur track would not be actionable — for instance, in transportation to and from the ice plant and electric light plant, or for delivery and receipt of *434freight to and from business bouses along said track and to or from the public cotton yard. But the facts recited in the prayer are not those incident to the operation of the spur track. The subject is so fully discussed in Thomason v. R. R., 142 N. C., 300, and Taylor v. R. R., 145 N. C., 400, that we can add nothing to what is there said.

We do not deem it necessary to discuss the other exceptions.

Error.