hotel," on the fifth and sixth floors, were ery one taking up his abode in the city must exused as guest rooms. Mr. Kirk also explain-pect to encounter the inconveniences and annoyances incident to such community, and he ed why it would not be practicable for the must be taken to have consented to endure such defendant to put a glass inclosure around annoyances to a certain extent." the hammers, or canvas screens outside of its windows, and stated that the complaint of Judge Lehmayer was the first and only complaint the company, or those who preceded it in the business, had ever received about the noise from its or their factory.

The bill of complaint alleges that the section of the city in which the plaintiffs' of fices and the defendant's building are located had never been a "factory district," but had been for many years "a retail business, and office building district," but the evidence in the case tends to show that, in addition to the defendant's factory, the type foundry, and the printing establishment referred to above, there have been a number of other like enterprises and several bowling alleys conducted in that neighborhood.

Of course the learned judge did not mean that because a party lives in a city he is compelled to endure all kind of noises, for he said there was a limit to the discomfort and annoyances to which a party living in a city or manufacturing district is "required to subject himself without remedy." But what the court meant was that, in determining whether the plaintiff is entitled to the relief sought, the court must take into consideration, not only the character of the noise, but also the locality in which the alleged nuisance is created. These cases are quoted and approved in the more recent cases of Hendrickson v. Standard Oil Co., 126 Md. 577, 95 Atl. 153, and Singer v. James, 130 Md. 382, 100 Atl. 642. In the case of Gallagher v. Flury, 99 Md. 182, 57 Atl. 672, Judge Pearce said:

[1, 2] The bill prayed that the defendant be enjoined from operating its hammers in "But the proximity of dwellings to disagreesuch manner as to produce the noise com-able or objectionable structures is an inevitable plained of. and in regard to the principle in- incident of life in cities and towns. As was said in Hyatt v. Myers, 73 N. C. 232: 'If a man, invoked by the plaintiffs in this case there can stead of contenting himself with the quiet and be no question or difficulty. The power to comfort of a country residence, chooses to live in restrain a party from so using his own prop- town, he must take the inconvenience of noise, erty as to destroy or materially prejudice dust, flies, rats, smoke, soot, cinders, etc., caused the rights of his neighbor is within the well-in the use and enjoyment of his neighbors' property, provided the use of it is for a reasonable established jurisdiction of courts of equity. purpose, and the manner of using it is such as But, as was said by Judge Alvey, in Adams not to cause any unnecessary damage or annoyV. Michael, 38 Md. 123, 17 Am. Rep. 516: ance to his neighbors.""

"It is not every inconvenience, however, in the nature of a nuisance to a party's dwelling, especially in a large commercial and manufacturing city, that will call forth the restraining power of a court of chancery by injunction. To justify an injunction to restrain an existing or threatening nuisance to a dwelling house, the injury must be shown to be of such a character as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it. Unless such a case is presented a court of chancery does not interfere. It must appear to be a case of real injury, and where a court of law would award substantial damages."

In the case of Dittman v. Repp, 50 Md. 516, 33 Am. Rep. 325, the same learned judge

said:

In the case of Bonaparte v. Denmead, 108 Md. 174, 69 Atl. 697, this court said:

"It must be borne in mind that this is not a suit at law for damages, as in Manion's Case, supra [87 Md. 81, 39 Atl. 90], but a bill for an injunction; and it must also be remembered that nothing is better settled in this state than that the granting or refusing an injunction rests in the sound discretion of a court of equity.'

* *

*

Even in the case of a suit at law, this court said, in Manion's Case, supra: 'But the fact just noted suggests caution in dealing with the rights of the owners or occupants of [livery] stable property. It cannot be denied that a [livery] stable in a town adjacent to buildings occupied as private residences is, under any circumstances, a matter of some inconvenience and annoyance, and must more or less affect the comfort of the occupants, as well as diminish the value of the property for the purpose of habitation. But this is equally true of various other erections that might be mentioned, which are indispensable, and which do, and must, exist in all towns.' * * In Adams v. Michael, 38 Md. 129 [17 Am. Rep. 516], this court said: "The granting of injunctions on applications of this character involves the exercise of a most delicate power, and the court is always reluctant to act, except in cases where the right is clear and unquestioned, and the facts show an urgent necessity.' That was an application to restrain a threatened, or rather an anticipated, nuisance, but the reference to the reluctance of the court to act except in cases where the facts show an urgent necessity is clearly applicable to an application like the present, against an alleged existing nuisance, where there is any reasonable doubt from the testimony as to the urgent necessity of applying this summary remedy."

"In all such cases, the question is whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant. This is the criterion laid down in the authorities, and, unless the facts show such a state of things, a court of equity will not interfere. * And in determining the question of nuisance from smoke or noxious vapor, or from noise or vibration, such as alleged in this case, reference must always be had to the locality, the nature of the trade, the character of the machinery, and the manner of using the property producing the annoyance and injury complained of. A party dwelling in the midst of a crowded commercial and manufacturing city cannot claim to have the same quiet and The cases to which we have referred and freedom from annoyance that he might rightfully claim if he were dwelling in the country. Ev- from which we have quoted dealt with al

leged nuisances caused by noises, noxious gases, and smoke affecting both the value and the enjoyment of the dwelling house or residence of the plaintiff. In the case at bar, at the time the suit was brought, one of the plaintiffs was occupying his offices under a lease for 1 year, and the others had a lease for 5 years, beginning in February, 1916, and the rules and principles announced in the cases mentioned would seem to apply with even greater force to the facts and circumstances of this case, where the alleged nuisance exists in the business section of a large city, and where the only injury complained of is the annoyance to which the plaintiffs are subjected when occupying their offices.

[3-5] It would serve no purpose to make further reference to the evidence in the case, all of which we have carefully examined and considered. While it shows that the noise

complained of does subject the plaintiffs, when they are occupying their offices with their windows and the windows of the defendant's factory open, to some annoyance and discomfort, the record does not, in our judgment, present such a clear case of an invasion by the defendant of the rights of the plaintiffs as entitled them to the relief prayed. It is, of course, the duty of the defendant to so operate its factory as to cause the plaintiffs no more annoyance and discomfort than is reasonable and to be expected, and necessary in the proper and lawful conduct of its business. On the other hand, the plaintiffs cannot hope to escape the annoyances that are to be expected in the neighborhood in which they are located, and which are incident to the reasonable and lawful enjoyment of the property of their neighbors. It is only where it is clear that the noise complained of is productive of actual physical discomfort to a plaintiff of ordinary sensibilities, and is, under all the circumstances of the case, unreasonable, and an invasion of his rights, that a court of equity can intervene by injunction.

Decree affirmed, with costs.

(132 Md. 540)

of the other, an employé of one road, who was killed while working on the tracks of the other road, is not at time of death an "employe" of latter road, under federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), although agreement specified that train employés should be subject to regulations and orders of company owning tracks on which they worked.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Employé.] Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Elizabeth Hull, administratrix of estate of John M. Hull, against the Philadelphia & Reading Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

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

Omer T. Taylor and Frank G. Wagaman, both of Hagerstown, for appellant. Henry H. Keedy, Jr., of Hagerstown (Charles C. Keedy, of Hagerstown, on the brief), for appellee.

BOYD, C. J. This is an appeal from a judgment rendered in favor of the defendant (appellee) in a suit brought by the appellant under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 86578665]), to recover for loss sustained by reason of the death of John M. Hull in Harrisburg, Pa. There are three counts in the declaration, all of which allege that John M. Hull, the son of Elizabeth Hull, the

plaintiff, was at the time of the injuries and death complained of and for some time prior thereto had been, a servant and employé of the defendant, and was employed and engaged in the performance of his duties in interstate commerce. The alleged negligence relied on is stated differently in the three counts, but it is only necessary to say that the declaration is sufficient to bring the case within the federal Employers' Liability Act, if the facts sustained it. The defendant filed the general issue plea and one alleging that John M. Hull was not on or about the 17th of March, 1917, or at any other time,

HULL v. PHILADELPHIA & R. RY. CO. a servant or employé of the defendant. At

(No. 48.)

(Court of Appeals of Maryland. April 3, 1918.) 1. COMMERCE 27(6) "INTERSTATE COMMERCE"-RAILROAD EMPLOYÉ.

A freight brakeman, who is a member of a crew taking a train from a point in one state to a point in another state, is engaged in "interstate commerce" within meaning of federal Employers' Liability Act (U. S. Comp. St. 1916, $$ 8657-8665).

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

2. MASTER AND SERVANT 88(6)-DEATH OF EMPLOYÉ RELATION OF PARTIES-RAILROAD EMPLOYÉS "EMPLOYÉ."

Where two railroad companies had agreement whereby each had the right to use the tracks

the conclusion of the testimony offered by the plaintiff, the defendant offered a prayer

ployed by the latter company in interstate commerce was killed on the road of the lessor by the alleged negligence of the lessee. Justice Pitney said in the early part of his opinion that:

"Under the local law, as laid down in Logan North Carolina R. Co., 116 N. C. 940, 21 S. E. 959, the lessor is responsible for all acts of negligence of its lessee occurring in the conduct of business upon the lessor's road; and this upon the ground that a railroad corporation cannot evade its public duty and responsibility by leasing its road to another corporation, in the absence of a statute expressly exempting it. The responsibility is held to extend to employés of the lessee, injured through the negligence of the latter."

After referring to the decision of the lower court in 156 N. C. 500, 72 S. E. 858, he said:

from Hagerstown, Md., to Rutherford, Pa., and when he was killed the same crew was engaged in taking a train from Rutherford to Hagerstown. The Western Maryland road extends from Hagerstown, Md., to Lurgan, Pa., and the defendant's road from Lurgan to Rutherford, and for the purpose of operating trains from Hagerstown to Rutherford and back the two roads entered into an agreement which will be referred to later. [1] We will first consider the question suggested by the special plea-whether Hull was an employé of the defendant within the meaning of the federal Employers' Liability Act. There can be no doubt about his being engaged in interstate commerce. Robert A. Warner conductor of the train, testified that they had taken a train from Hagerstown to Rutherford, arriving at the "It is plain enough, however, that the effect latter place some time the day before, and of the rule thus laid down, especially in view were called about 12:15 a. m. on the 17th of of the grounds upon which it is based, is that although a railroad lease as between the parties March by the yardmaster of the Rutherford may have the force and effect of an ordinary yard of the defendant company. He direct- lease, yet with respect to the railroad operations ed them to get a train of cars off the west- conducted under it, and everything that relates bound yard and pick up seven cars at Har-by the lessor under its charter, such a lease to the performance of the public duties assumed risburg. They proceeded from Rutherford certainly so far as concerns the rights of third to Harrisburg on the west-bound main track, parties, including employés as well as patronson which track their train was standing constitutes the lessee the lessor's substitute or agent, so that for whatever the lessee does or when they stopped for the seven cars, which fails to do, whether in interstate or intrastate they added to their train. The yardmaster commerce, the lessor is responsible. This being at the Rutherford yard gave him instruc- the legal situation under the local law, it seems tions as to the operations connected with the before us, that the lessor is a 'common carrier to us that it must and does result, in the case movement of the train. The Philadelphia & by railroad engaging in commerce between the Reading supplied the person to take the states,' and that the deceased was 'employed place of Hull as a member of the crew after by such carrier in such commerce' within the he was killed. The witness said that his in- he was employed by the lessee, in such commerce meaning of the federal act; provided, of course, structions were that when on the line of the at the time he was killed." Philadelphia & Reading he should obey the rules and instructions of that company. The federal Employers' Liability Act pro

vides:

In the case of Southern Ry. Co. v. Lloyd, 239 U. S. 496, 36 Sup. Ct. 210, 60 L. Ed. 402, an engineer in the general employ of the Southern Railway Company was injured on the road of the North Carolina Railway Company, being the same company mentioned in the Zachary Case, and the relation was the same between the two companies as in that. The plaintiff sued and recovered judgment against both companies, which was affirmed by the Supreme Court of the state and later by the Supreme Court of the UnitU.ed States, citing the Zachary Case as the authority for it.

"That every common carrier by railroad while engaging in commerce between any of the several states or territories ** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his ** personal representative, for the benefit of the surviving widow or husband and children of such employé * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier," etc. S. Comp. St. 1916, § 8657.

There have already been a large number We quoted at length from the Zachary of decisions on various questions which have Case because the appellant relied so strongly arisen under Employers' Liability Acts in on it, and, being decided by the Supreme the state and federal courts, but it is rather Court of the United States, it is necessary to remarkable that there are not more directly ascertain whether it is applicable to this case. bearing upon the question we have before us. After giving it our most careful consideraOne of the principal cases relied on by the tion, we have reached the conclusion that it appellant is North Carolina R. R. Co. v. is not. Justice Pitney shows clearly that Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 the decision is based on the local law of L. Ed. 591, Ann. Cas. 1914C, 159. In that North Carolina, as announced by the Sucase it was shown that the North Carolina preme Court of that state, which makes a Railroad Company was not an interstate lessor railway company responsible for all railroad, its tracks and property lying whol- acts of negligence of its lessee occurring in ly within the state, but it had leased its road the conduct of business upon the lessor's to the Southern Railway Company, which is road, as is seen by the quotations we have

become one of the appellee from the time he reached Lurgan would be contrary to what is generally understood by the term "employé," and would unquestionably be contrary to the spirit, if not the letter, of the agreement between the two companies, which was offered in evidence by the appellant. There is not the slightest suggestion in that agreement that the crew of one company was to be regarded as the crew of the other, while on the latter's line. We will refer to such parts of the agreement as we deem material. Paragraph 2 is as follows:

that, in order to bring the case within the, employé of the Western Maryland and had terms of the federal act, "defendant must have been, at the time of the occurrence in question, engaged as a common carrier in interstate commerce, and plaintiff's intestate must have been employed by said carrier in such commerce." As the North Carolina Railway Company had made the lease without being authorized by a statute expressly exempting it, it could not escape its responsibility under the rule adopted in that state, and Justice Pitney said, as shown above, that the lease "constitutes the lessee the lessor's substitute or agent, so that for whatever the lessee does or fails to do, whether in interstate or intrastate commerce, the lessor is responsible." (Italics ours.) No such relation exists between these two railroad companies. There was no lease, and the appellee had not turned over its charter duties to the Western Maryland Railway Company. It was still in the discharge of those duties, but the two companies by agreement used each other's tracks in the performance of their duties in

certain interstate commerce.

It is not unusual for two railroad companies to make such, or similar, arrangements. Sometimes there is the relation of lessor and lessee, and, without citing the cases in the notes, it will be seen by reference to 33 Cyc. 703-707, that the courts are not altogether in harmony in reference to some matters arising when that relation exists. Then there are a number of cases which have arisen when one company has permitted the use of its road by another (Id. 710), and still others, where companies were operating or using roads of others (Id. 713). When we are called upon to ascertain whether a person is a servant or employé of another, sometimes the question arises as to whether, although he is a general servant of one master, he has become the servant of another, in some particular employment. See 26 Cyc. 1285, where the effect of the servant of one master being under the control of another is considered, but on the next page of that volume it is

said:

"The fact that one railroad company uses the track and stations of another under contract between them does not as a rule make the employés of either company fellow servants with the employés of the other."

It is undoubtedly true that two railroad companies operating under such a contract as the one in this case bear a very different relation to each other from those operating under a lease, where one has practically turned over the operations of its road to the

other.

[2] Hull was unquestionably an employé of the Western Maryland Railway Company, and not of the appellee, until he reached Lurgan on his trip the day before he was killed, and would have been as soon as he reached Lurgan on the return trip, had he not been killed. To hold that he had ceased to be an

"Freight trains to run through between Hagerstown and Rutherford in both directions and each company agrees to supply motive power in the above proportions so as to equalize the service performed."

road to run through with their engines over Paragraph 4 provides that, "Crews of each the line of the other company."

Paragraph 5 provides, in part, that each company to compensate the other for the use of the others' engines and crews on their line at the rates per hour set out. Time to begin at Rutherford and Hagerstown when crew is called for.

Paragraphs 6, 7, 8, 9, and 10, are as follows:

"6. The division of earnings of traffic not to be disturbed or in any way affected by this ar rangement.

supplies to its own engines and crews; any fur"7. Each company to furnish fuel and other nished by one to the other to be upon agreed uniform rates.

"8. No charge shall be made for water and terminal facilities.

"9. Neither company to be expected to do the engine cleaning and wiping for the other; where done, a charge of seventy-five (75) cents per engine to be made.

"10. Each company to be responsible and bear all damage and expenses to persons and property caused by all accidents upon its road."

Paragraphs 16 to 21, inclusive, are as fol

lows:

"16. Each company to relieve and return as promptly as practicable the engines and crews of the other at ends of runs.

"17. Each company to have the right to object and to enforce objection to any unsatisfac tory employé of the other running upon its line.

"18. All cases of violation of rules or other derelictions by the employés of one company while upon the road of the other shall be prompt ly investigated by the owning company, and the result reported to the employing company, with or without suggestions for disciplining, the em ploying company to report to the other the ac

tion taken.

"19. Accident reports on prescribed forms to be promptly made of all such occurrences, and where a crew of one company is operating upon the road of the other, a copy must be sent to the proper officer of each company.

"20. The employés of each company to be required to report promptly, on notice, to the proper officer of the other, for investigations of given by the one company to the other in all such accidents, etc., the fullest co-operation to be matters.

"21. The employés of each company while up on the tracks of the other shall be subject to and orders of the owning company." conform to the rules, regulations, discipline and

There would seem to be no doubt that the ring from the negligence of his fellow workmen. provisions of the contract referred to above show that the two companies did not intend to make the regular employés of the one company the employés of the other, when on the latter's line; on the contrary, it

is apparent that they intended the very opposite. The appellant relies on paragraph 10, but there is nothing in that to show that the employés of the other company are to be regarded as employés of the owning company. The appellee would undoubtedly be responsible to an employé of the Western Maryland Railway Company for injuries sustained by reason of the negligence of the appellee's employés or agents, but not under the federal Employers' Liability Act. Suppose that act had not been passed before this accident, could it have been successfully contended that the appellee was not responsible for the death of Hull because its employés were his fellow servants? That would have extended the fellow-servant doctrine very far, and certainly beyond what had been done in this state.

In P. W. & B. R. R. Co. v. State, use Bitzer, 58 Md. 372, 400, that company, the Baltimore & Ohio Railroad Company, and other railroad companies had an agreement with reference to the use of the defendant's road in Baltimore. There was an agreement between the companies in that case. This court said: "Whatever effect this agreement might have upon the parties to it, it could not have any upon strangers to it, nor alter nor change the relations of either of them towards third parties, nor have the effect of making those, who were employed and paid wages by either of the contracting parties, the coemployés of the agents and workmen of the other parties, nor make the others liable, either severally or jointly, for any loss or damage caused by the neglect of any one of them, even had the agreement been silent in this respect. But in order to guard against any such result, the agreement itself expressly provides, that, if an accident shall happen whereby damages to persons or property shall be incurred, the party on whose road the same shall happen shall alone be responsible.'"

It will be observed that paragraph 10 is not a new provision in such agreements. The opinion went on to say, in reference to the principle that every employé assumes the risk of the negligence of his coemployés :

That is the first proposition. The second properations workmen were held by the court to osition modifies the law whereby in other genassume the risk arising from defective machinery." Thornton on the Federal Employers' Liability and Safety Appliance Acts (2d Ed.) § 1.

It is obvious that there was no necessity to pass the federal act for the benefit of the employés of one company when injured by those of another company, under such circumstances as we have in this case, so far as the doctrine of fellow servant is concerned. It would be regarded as carrying the doctrine to an unjustifiable extreme, if in a suit for the death of Hull, brought outside of this act, the defense of fellow servant had been allowed. Under the language of the federal act, there is less ground for holding the employés of the several companies to be coemployés, than there was in such a case as Bitzer's. The general principle is also recognized in Bentley, Shriver & Co. v. Edwards, 100 Md. 652, 60 Atl. 283, although that was not a railroad case.

In the case of Robinson v. B. & O. R. R. Co., 237 U. S. 84, 35 Sup. Ct. 491, 59 L. Ed. 849, Robinson was a porter on a Pullman car, was required to obey the rules and regulations of the railroad company, and collected tickets and fares from passengers coming on the train after 3 o'clock a. m. He was injured by the alleged negligence of the railroad company and sued under the federal Employers' Liability Act. It was held that he was not an employé within the meaning of that act. Justice Hughes said:

"We are of the opinion that Congress used the words 'employé' and 'employed' in the statute in their natural sense, and intended to describe the conventional relation of employer and employé. It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act."

So it may be said that Congress may have been presumed to know that such arrangements as existed between these two companies were often made, and if it had intended to make the employés of the "owning com

"Samuel Bitzer was not employed or paid by the appellant, but was employed by the Balti-pany," as the agreement calls it, coemployés more & Ohio Railroad Company, and therefore of the other company, it would have used this principle is not applicable to him." language "to indicate a purpose to include" them.

That case settled the question for this state that the employés of the several railroad companies could not, in working under such an agreement, be considered coemployés. One of the objects of this act, as explained by Sen. Doliver on the floor of the Senate, was to modify the old law of the negligence of coemployés. He spoke of the law in this country that an employé injured by the negligence of a fellow workman could not recover, and said:

"This bill abolishes that doctrine, and gives the employés the right to recover for injuries aris

That is,

The fact that the crews of the other company were subject to the rules and regulations of the owning company cannot be material in determining the question. of course, necessary for the safety of all persons traveling on the line of the owning company, as well as all working on it. The business could not be successfully conducted on a road over which many trains ran, if the "employés of each company," to use the language of paragraph 21, while upon the tracks of the other, were not subject to and