by the obstruction aforesaid greatly torn, mangled, and bruised, and caused to suffer great bodily and mental pain and anguish, and great and permanent injuries, and that said injuries were so received by the said infant as a direct and immediate consequence of the aforesaid negligence of the defendant in the premises."

The amendment to the second count consists of the italicized words appearing in the above amended declaration. The evidence discloses that the table mentioned in the declaration was upon the sidewalk in front of the grocery store of Ernest Miller, at the southwest corner of Potomac and Antietam streets, in said town, where it had been for a number of years prior to the happening of the accident. This table, used by Mr. Miller in placing thereon flower bulbs, vegetables, and other articles that were offered and exhibited by him for sale, was 12 feet in length, 21⁄2 feet in width, and 1 foot and 9 inches in height, and sat against the front wall of the store building, below the show window of the store, the sill of which came within a few inches of the top of the table, in an angle caused by the projection of a stoop or steps out from said building upon the sidewalk, extending to a point beyond the width of said table; the height of the stoop or steps be ing about the same as that of the table. The sidewalk in front of the store, at the point where the table was located, was 101⁄2 feet in width; that is to say, the distance from the front wall of the store building to the curbstone was 10% feet, and the distance from the eastward or outer side of the table to the curbstone was 8 feet.

automobile, and that the child was between the springs, and was struck by some part of the machine which did not extend so far to the rear as the rear ends of its springs. It is evident that the child was not caught between the table and that part of the automobile which struck the table, breaking the board upon it, for, had she been so caught, we cannot conceive how she could have escaped instant death. The noise of the impact was heard, not only by Mr. Miller, who was in his store at the time, but by others across the street, which shows the force with which the automobile struck the table, and, had the table not been there, the automobile, considering the force with which it was backed, would no doubt have gone to the wall of the store building, only 2% feet away, inflicting the same, if not more, serious injury to the child.

[1] As it appears to us, the real question in this case is whether the alleged negligence of the defendant in permitting the table to remain upon the sidewalk in violation of the alleged ordinance was the proximate cause of the injuries complained of. It is a maxim that the law looks at the proximate, and not at the remote, cause of an injury. Out of the application of this maxim grows the liability or nonliability of a defendant charged with the infliction of an injury by his negligence. Unless the alleged negligence of the defendant was the proximate cause of the injury of which the plaintiff complains, there can be no recovery. For consequences of which his act or omission was only a mere condition or On the afternoon or evening of the acci- remote cause, the defendant is not liable. dent, the infant plaintiff, at that time 5 The constantly recurring problem is: Did years of age, had gone with her mother to the defendant's act or omission proximately the store of Mr. Miller. The mother had cause the plaintiff's injury, and was such made her purchase, and had left the store, act or omission a want of ordinary care, or and had turned to the right upon the side- was the act or omission of the defendant walk, with the infant plaintiff to her left, only a remote cause or mere condition of the she being between the front wall of the store injury? No ultimate test of such character building and her infant daughter, and while has yet been formulated. It is by analysis so walking upon the sidewalk, with the in- and synthesis, rather than by definition, that fant plaintiff's right hand in her left hand, the distinction between proximate and rethe automobile, owned by Clap and driven by mote cause must be made. 16 Am. & Eng. one Kreitz, backed against and over the curb Ency. of Law, 428. In the case of Young Co. upon the sidewalk, and in some way, not very v. State ex rel. Kabat, 117 Md. 247, 83 Atl. definitely stated in the testimony, caught 347, we said, speaking through Judge Burke: the infant plaintiff between the rear part of "It is * well settled that to sustain the automobile and the table, inflicting the the action it was incumbent upon the equitable personal injuries complained of. The mother, plaintiffs, not only to offer evidence legally suf as she testified, did not observe the automo- under the rule stated, but they were bound to ficient to prove the negligence of the defendants bile until it was practically upon them, al-offer evidence legally sufficient to show that the though at such time she had made only a few steps from the door of the store, which was upon the corner of the streets, and in making her exit through that door, and in turning to the right on South Potomac street, she faced that street at the point where the automobile was being turned. The evidence is not clear as to what part of the machine struck the table, but from the character of the break in the table, as described by the witnesses, it is most probable that it was the rear end of one of the rear springs of the

negligence charged resulted in the death of Vincent Kabat. Actionable negligence is an act, or omission of duty, which is the proximate cause of an injury. No matter to what extent, or in what respect, a party may be negligent, such negligence does not constitute a cause of action, unless the negligence charged and the injuries sued for bear the relation of cause and effect."

In the more recent case of State v. W. B. & A. Elec. Rd. Co., 130 Md. 612, 101 Atl. 549, Judge Burke, speaking for this court, said: "It is admitted that the rule is difficult of application. But it is generally held that, in or

T

der to warrant a finding that negligence, or an
act not amounting to wanton wrong, is the prox-
imate cause of an injury, it must appear that
the injury was the natural and probable con-
sequence of the negligence or wrongful act, and
that it ought to have been foreseen in the light
of the attending circumstances."

[2] If the facts and circumstances above related were the only facts and circumstances upon which the plaintiff relied, it is clear that the alleged negligence of the defendant in permitting the table to remain upon the sidewalk in violation of the ordinance was not the proximate cause of the injuries sustained by the plaintiff, and this was so held by the court below, for not until the declaration was so amended as to involve the alleged faulty construction and contour of the street and curb at the place where the automobile was turned did the court hold that the facts alleged constituted a cause of action. We are therefore to inquire whether the facts offered in evidence under the aforesaid amendment to the declaration, considered in connection with the facts and circumstances already related, show that the negligence with which the defendant was charged was the proximate cause of the injuries suffered by the plaintiff.

Kreitz, the driver of the automobile which passed over the curb upon the sidewalk, inflicting the injuries complained of, was running his machine down Potomac street on its westward side, and upon reaching Antietam street attempted to turn in Potomac street without backing his automobile; but, as he says, there were three young ladies standing in the street near the southeast corner of Antietam and Potomac streets, about two feet from the curb, and because of their presence there he was prevented from making the turn without backing his machine. At this time the front part of his car was within three or four feet of the young ladies and was east of the east rail of the track, the after part of it being over the rails. It was then that he started to back his car, and in doing so he "threw out the clutch and put it in reverse gear," giving the car a backward motion, and it backed over the curb upon the sidewalk. He did not look back to see where his car was going, although he says he used his foot brake be fore reaching the curb, and, feeling the car go over the curb, he applied the emergency brake.

Stewart Miller, assistant engineer of the city of Hagerstown, when called to the stand by the plaintiff, testified that South Potomac street, at the point where the accident happened, is approximately 60 feet in width from house line to house line, and is 37.7 feet in width between the curbs; that it is paved between the curb with vitrified brick; that there was a trolley track about the center of Fotomac street, the western rail of which was 16 feet and 9 inches from the western curb of the street; and that the elevation of

than the bottom of the gutter at the curb on the west side of the street. The curb, which was of limestone 6 inches thick, arose to an elevation of about 6 inches above the bottom of the gutter. Its outer edge was somewhat worn. He, however, upon cross-examination, testified as follows:

"1 Q. Is there anything, in your opinion as an engineer, wrong with it, with reference to a reasonable construction of the street? 1 A. No, proper construction there at that corner of that sir. 2Q. (by Court). Is that a reasonable and street, in your judgment? 2 A. Yes, sir. 3Q. In which direction does the water drain on Pothe west side of Potomac street the water flows tomac street? 3 A. It drains north." That on north to the south side of Antietam street, and then west down the south side of said lastnamed street.

This testimony of the assistant engineer, witness for the plaintiff, was supported by Ferguson, the engineer of the city, a witness of the defendant, who had been engineer of the city for a little over 3 years, and, like the assistant engineer, was not in the service of the city when the street was paved, some 17 or 18 years before the happening of the accident. He, when asked:

"1Q. In your opinion as city engineer, and as a street and road builder and civil engineer, that is a proper and reasonable construction of will you please tell the court and jury whether a street of that kind at that place where the accident happened? 1A. It is. 2Q. Why? building of city streets." 2 A. It is a very usual construction in the

The court then asked him:

"1 Q. Is there anything unusual in having the street, or driveway part of the street, higher than the pavement sidewalk? 1 A. No, sir; not at street intersections. I should say, with with subsurface drainage, it is the rule rather the exception of streets that are well provided than the exception. 2Q. What kind of drainage do you have in Hagerstown? 2A. At this point there is only surface drainage."

He also testified there had been no change in the streets since he had been city engineer. It had neither been lowered or raised in that time. It had remained the same.

Other witnesses, called by the plaintiff, who had frequently turned their cars upon the street at that point by backing them, testified that they never had any difficulty in avoiding going over the curb, as was done in this case. The condition of the street was practically the same at the time of the happening of the accident as it was when paved more than 17 years before said time. grade or contour of the street was the same when the accident occurred as it was when first paved, and the evidence fails to disclose, during the whole period from the time said street was paved to the happening of this accident, that any automobile had ever backed over the curb and upon the sidewalk, in attempting to turn in the street.

The

[3] In our opinion there is nothing in these facts and circumstances which tend to show that the accident was the natural and probable consequence of the alleged negligence of the defendant, and that the act of

upon the sidewalk, resulting in the injuries From decree dismissing the bill, plaintiffs suffered by the plaintiff, ought to have been appeal. Affirmed. foreseen by the defendant, in the light of such facts and circumstances. Therefore, as this court said in County Commissioners of Anne Arundel County v. Collison, 122 Md. 95, 89 Atl. 327:

"Unless the testimony tended to show that the negligence relied upon was the proximate cause of the accident, there was nothing upon which a jury could predicate a verdict for the party complaining, and the court should have declared that as a matter of law, and directed the jury so to find."

We must therefore hold that the court erred in its refusal to grant the defendant's fourth prayer, asking that a verdict be directed for the defendant because of a want of evidence legally sufficient tending to show that the alleged negligence of the defendant was the proximate cause of the accident. The judgment of the court will therefore be reversed.

Judgment reversed, without a new trial, with costs to the appellant.

(133 Md. 78)

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

William C. Coleman and Randolph Barton, Jr., both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellants. Harry N. Baetjer, of Baltimore, for appellee.

THOMAS, J. The bill of complaint in this case was filed to enjoin an alleged nuisance, and the present appeal is from a decree dismissing the bill, after a hearing upon the bill, answer, and proof.

The plaintiffs, John W. Lohmuller, Vincent L. Palmisano, John W. Prinz, and Martin Lehmayer, were engaged in the practice of law, with offices in the Calvert Building, located at the southeast corner of Fayette and St. Paul streets, in the city of Baltimore. Mr. Lohmuller, Mr. Palmisano, and Mr. Prinz have occupied rooms Nos. 463 to 469, on the fourth floor, since February, 1916, and Judge Lehmayer has had his offices in rooms Nos. 563 to 569, on the fifth floor, directly above

LOHMULLER et al. v. SAMUEL KIRK & the offices of the other plaintiffs, since 1905.

SON CO. (No. 14.)

(Court of Appeals of Maryland. June 19, 1918.) 1. NUISANCE 75-POWER TO RESTRAIN.

The power to restrain a party from using his own property so as to destroy or materially prejudice the rights of his neighbor is within the established jurisdiction of the courts of equity. 2. NUISANCE 72-INJUNCTION.

The Calvert Building fronts on Fayette street, and that portion of the building in which the plaintiffs' offices are located extends back to an alley, between 24 and 25 feet wide, known as "Bank Lane." The offices of the plaintiff extend about 30 feet along Bank lane, and have three windows opening Not every inconvenience in nature of nui- on Bank lane and a window opening on an sance to person's dwelling, especially in a large alley between the Calvert Building and the commercial and manufacturing city, will call Equitable Building, just east of the Calvert forth restraining power of equity by injunction; case must appear to be one of real injury, where Building. The defendant, the Samuel Kirk a court of law would award substantial damages. & Son Company, owns and occupies a large 3. NUISANCE 72-INJUNCTION-OPERATION building known as Nos. 106 and 108 East OF HAMMERS. Baltimore street, in which it carries on the business of buying, selling, and manufacturing jewelry, silverware, and other valuable caused lawyers in adjacent office building some annoyance and discomfort when their windows articles. This building, which is 50 feet wide and those of the factory were open, lawyers and four stories high, extends from the north could not enjoin alleged nuisance; their dam- side of Baltimore street to the south side of ages not being so substantial, and interference with their rights so serious, as to call for such relief.

Where operation of hammers by manufacturer of silverware in business section of city

4. NUISANCE 67-NOISE FROM OPERATION OF HAMMERS.

It is the duty of a manufacturer of silverware to operate its factory so as to cause tenants in an adjacent office building no more annoyance and discomfort than is reasonable and to be expected and necessary in the lawful conduct of the business.

5. NUISANCE 80-INJUNCTION-NOISE.

Only where noise complained of in suit to enjoin a nuisance is productive of actual physical discomfort to a plaintiff of ordinary sensibilities, and under all the circumstances is unreasonable and an invasion of his rights, can a court of equity intervene by injunction.

Bank lane, and from one-third to one-half of the north end of the building is opposite the Calvert Building and the offices of the north end of the defendant's building is opplaintiffs, and the remaining portion of the posite the building of the New Amsterdam Casualty Company. The defendant's factory for the manufacture of silverware and for repair work is located on the fourth or top floor of its building, and at the north end of this floor the defendant has installed four iron hammers, used in the manufacture of repoussé silver. These hammers, which weigh about three pounds each, are suspended above a bench, and are operated by the foot

Appeal from Circuit Court of Baltimore of the silversmith. The fourth or top floor City; H. Arthur Stump, Judge.

"To be officially reported."

of the defendant's building is below the level of the fifth floor of the Calvert Building, and Suit by John W. Lohmuller and others in the north end of the fourth floor of the against the Samuel Kirk & Son Company. defendant's building there are seven win

dows opening on Bank lane. The bench above which the hammers are suspended is opposite and about 10 feet from the third window from the east side of defendant's building, and this window, according to the plat filed with the record, is 30 feet and 9 inches from the east window of Judge Lehmayer's offices and 27 feet from the east window on the sixth floor of the New Amsterdam Casualty Company building. Henry Adams, a consulting engineer, and a witness produced by the plaintiffs, describes the use of these hammers as follows:

"These hammers are secured on

a bench. They are, I think, four of them, and they are suspended-the hammers are suspended-about this bench, and at the edge of the bench there are bars, in the shape of a V, tapered bars, secured at the bench, and there is a small point at the end, tapered. Now, the hammer strikes near the support by foot power, as the operator sits there, and he can strike as strong a blow or as light a blow as he wants. He has his piece of silver on which the design is outlined in his hand, and he has a feeling-he touches his finger on the work and he moves that piece of silver over that point and strikes his blow continually, sometimes heavy and sometimes light, according to the design he wants to bring out. It is not a direct blow, it is an indirect blow. You hear the noise from the hammer here (indicating) and certain noise at the end of the bar. In the room itself when they are going, with the other machinery going, you do not hear that noise as penetrating as you hear it outside of the room.'

Mr. Kirk, the president of the defendant company, gave the following explanation of the use of these hammers:

"I have drawings now that I have made myself of a device that I had hoped would lessen the noise and accomplish the same result, and, after talking with our mechanics and the foreman of our department and several of our men, it was found that if the devices were made and put in operation it would lessen the noise very little, and it would require the restraining of our entire force, as the snarling iron is the standard equipment, and it meant also that every chaser that we would get in from an outside Source would have to be retaught, and, another thing did, it eliminated the sense of feel that the present iron has, and therefore it would practically make it very difficult to do the work. I can explain it: The iron is held in a vise. It is a three-pound hammer, and the hammer is attached-the handle of that hammer is attached by a cord to a treadle that is held spring, and on the other end is the spring that holds the hammer up. The hammer does not fall of its own weight; it falls on account of the blow, which is the weight of the man's foot as he puts it there. It is as near balanced as possible, almost like the scale. The piece of silver is put over the snarling iron, and the men hold either one or two fingers on the iron in order to guide it. The sense of feel in the first two fingers of their hand must be absolutely accurate and keen; otherwise they cannot judge what they are doing. For instance, a direct blow would not accomplish the same purpose. There is no other way to do it than the one way, and I think Mr. Adams will agree with me that that is true. We have studied every known method to try to reduce that noise, particularly since Judge Lehmayer's complaint, and we have spent a great deal of money in trying to relieve the situation."

up by

"Well, these hammers when I am in my office, I suppose it would be as far away from me as about 30 or 35 feet, and they make a terrible one end of this courtroom is from the other, say noise. As for the windows (the windows in his office) being open, your honor, the windows are kept open very often in October, and on a day like this. The windows are open at this time and also sometimes in March and sometimes in April, and even in winter windows are kept open. It is true they are kept open only to a small extent for the purpose of ventilation. The noise is of such a character that it absolutely renders it impossible to use the offices when it is going on. It is intermittent. It used to go on day after day, but since this bill has been filed it has decreased. They do not use the hammers the day; sometimes one hammer was going, as much now, but before it was at all hours of sometimes two and sometimes three, three at one noise. It goes right through you, it affects the * It is a peculiar penetrating nerves, it is a nerve-racking noise. It is almost matter how hot it is, if you want to stay in enough to give you nervous prostration. No my office you have to close the windows and keep them closed to carry on a conversation. I would have my stenographer at the opposite side of my desk dictating a letter to her, and all of a sudbe the end of it. I would either have to shut the den these hammers would start, and that would windows or go in one of the further rooms that Mr. Binswanger occupies; he is a subtenant of mine. * * * You cannot conduct an ordinary conversation while these noises are going on. You cannot hear a telephone conversation."

time. *

*

He also stated that the noise came in through the window opening on the alley between the Calvert Building and Equitable Building, and further testified as follows:

"Q. (By Mr. Baetjer): You mean the noise
from the hammers; yes.
would come around there? A. Yes; the noise

"The Court: Around the corner?
"The witness: Yes.

"Mr. Coleman: There is a court there?

"The Witness: Yes. That is almost as close as the other windows. You hear the noise there just as bad. When you strike iron on iron it gives a peculiar noise, but when that iron in turn strikes silver, it is a reverberating noise, almost enough to set you crazy."

Mr. Lohmuller, who, as we have said, occupied one of the offices on the fourth floor below the offices of Judge Lehmayer, and other witnesses, testified to the disturbing character of the noise to those occupying the offices of the plaintiffs when the plaintiffs' windows and the windows in the defendant's building were open, and the difficulty of carrying on a conversation over the telephone. Mr. Adams, the consulting engineer, who, by arrangement between the plaintiffs and the defendant, examined the defendant's factory, and tested the noise in Judge Lehmayer's office with the windows in his office and the defendant's building open, and while the hammers were being operated for the purpose of affording him every opportunity to do so, described the noise as follows:

"Judge Lehmayer was sitting opposite me at his desk, and I talked to him and it was very difficult; that is, annoying all the time. Your attention was called to these noises all the time on your ears while you were there, continually * It is exceedingly annoying. It is Judge Lehmayer described the noise as he not a continuous sound you could get used to;

So.

*

then goes ahead, continually changing all the had occupied his office, and had been almost time." "continuously" in it during the business hours of the day, for about 2 years, and that he had never been annoyed by noise from the defendant's factory. It appears by the plat we have referred to that the east window in this office of Mr. Breckett is only 27 feet from the window in defendant's factory opposite which the bench over which the hammers are suspended is located.