Huselton vs. Park. fronting thereon, and until defendant purchased and extended his building to the street there were but two small stores extending to the line of the street, both being near Federal Street. Defendant had an undoubtd right to buy, and to extend his building, both front and rear, and convert his building into a business house. It seems equally clear that he had no right to install, and has no right to maintain and operate machinery to the injury of the plaintiff, either in her person or her property. That the gas engine, presses, etc., when in operation cause an incessant noise, jarring and vibration can not be doubted, and that the effect is directly injurious to plaintiff's house is a fact established by the evidence. That the effect upon plaintiff's health has been injurious is also established by uncontradicted evidence, but there is no evidence to sustain a finding that this injurious effect is so serious as to, alone, require the granting of an injunction. Defendant contends that inasmuch as his gas engine and appliances are modern and of the approved type in common use, and as there is no complaint of any defect in construction or of any failure to operate properly, plaintiff has no legal or equitable cause for complaint. This contention can not be sustained. It may be conceded that each proposition of fact involved in this claim by defendant is correct, but it by no means follows that plaintiff must, therefore, be denied relief. The preponderance of the evidence sustains plaintiff's contention that the operation of the gas engine and other machinery is directly injuring her house and makes it a very uncomfortable place in which to live. It is unnecessary to review the evidence upon this phase of the case at length. Neither is it necessary to undertake to point out just how much injury is caused by the operation of the engine, and how much by the operation of the other heavy machinery. It is probable that the chief cause of the noise, jarring, shaking, etc., is the gas engine. The question under consideration is not one of change in the character of a neighborhood cr the effect of this change upon values, but whether one man can select a place suitable for his business and install the machinery and appliances necessary to carry it on, and compel the owner of a home alongside of which he sees fit to locate to submit to the change or move out. Doubtless Mr. Park is honest in his belief that plaintiff's property is not reduced in market value by the operation of his plant, but the evidence does not sustain his view. There is no evidence to warrant the conclusion that plaintiff's premises have been or are being injured to any serious extent by any other business or occupation carried on in the neighborhood. There is no contention respecting the method of operation, or that with the engine and machinery in operation it is possible to avoid noise, jarring, etc. There is no averment of negligence. Whether the defendant can with his present machinery, so operate as to avoid the jarring and noise of which complaint is made does not appear, and so far as we have any evidence on which to base an opinion, it tends to show that Mr. Park is doing the best he can with the machinery and appliances in use, save only as to hours of work. Defendant's contention that the plaintiff should be denied relief on the ground of laches is not supported by the facts. That Dr. Huselton and Mr. Park had some conversation prior to the installation of the printing plant is established by the evidence, but there is no evidence that either the doctor or his wife had any knowledge that a gas engine, dynamo, and heavy presses were to be installed, or that they would cause the damage and annoyance of which complaint is made. Having put in the machinery without notice as to its probable effect, when in operation, the defendant cannot complain that he has been allowed to use it for a considerable period of time without litigation. There is no evidence that he was misled by Huselton vs. Park. any act or by the non-action of plaintiff, or that he expended money on the faith of any promise, express or implied, on the part of plaintiff. It is true that defendant has invested a considerable sum of money in the purchase and equipment of his plant, but in doing so he acted on his own judgment, assumed the risk incident to the locating and operating of a gas engine, dynamo, heavy presses, etc., on a street chiefly occupied by dwellng houses, and immediately adjacent to one of them. It is not our understanding that one who voluntarily expends his money in equipping a "plant" for his own profit, is entitled to protection by a Court of Equity in its operation, to the continuous injury of the property, and great personal discomfort, of the owners and occupants of adjoining premises, and especially of those who have priority of right. Whether defendant can remove all just grounds of complaint by installing a different type of engine and making such other changes in his plant as may be found necessary, and whether he can limit his hours of work so as not to interfere with the hours usually devoted to rest and sleep, and whether he is willing to do so, is not disclosed by the evidence. We have given due consideration to the testimony showing the character and use of properties in the surrounding neighborhood, the change in the width of Stockton Avenue, the location and use of the railroad property immediately south of Stockton Avenue, and to the arguments of counsel based on these facts, and all other facts and circumstances bearing upon the controversy, and our conclusions are: That plaintiff is not chargeable with laches; that the injuries complained of are such as entitle her to relief in equity, and that defendant should be enjoined. It is unnecessary to review or comment upon the numerous decisions cited by counsel. The rules governing the exercise of the power to grant or withhold injunctions are well established. The principles of equity involved in this case have been carefully considered in the light of the facts and of the authorities cited. In our opinion plaintiff is entitled to the relief asked in the first and second prayers of her bill, and it is so ordered. Miller vs. Republic Chemical Co. Negligence-Master and servant-Proximate cause--Case for jury. The plaintiff had charge of a gang of workmen engaged in unloading heavy machinery from cars. Plaintiff was injured by an end-gate falling. He testified that he had told the superintendent of defendant company that the end-gate placed as it was by the superintendent's direction, was in a dangerous position, and that the superintendent had told him they would get a derrick after while, but that they should go ahead and unload in the manner directed. Whether the accident happened from any failure or unsafe condition of the apparatus as contemplated by the parties, or what might happen by reason of unsafe conditions. was a question of fact for the jury, and a motion for judgment for defendant n. o. v, refused. Sur motion for judgment non obstante veredicto. No. 1589 July Term, 1913. C. P. Allegheny County. Stephen G. Porter, for plaintiff. Franklin T. Nevin, for defendant. SHAFER, P. J., June 16, 1915.-The plaintiff was employed by the defendant company in unloading from cars in the works of the defendant company heavy castings and pieces of machinery of different kinds. At the time he received the injuries complained of he was engaged in removing from cars certain pieces of machinery called basket tanks, each weighing two or three tons. The method he was directed to adopt was to push the car containing the tanks to a distance of twelve feet from another car and lay two wooden beams from the platform of one car to the platform of the other, to build up half way between the cars, under these beams, a support of timbers, to lay iron straps on top of each of the beams in order to give a smooth surface; to remove the end gate from the car containing the beams, and then by means of crow-bars pinch the baskets out of the end of the car and onto the beams, sliding them on the iron straps to the middle of the space between the cars, and then to slide them sidewise on other beams to the ground. The plaintiff says that he was directed by the Superintendent of the company in charge of the work not to put the end gate on the ground, as it might be left when the car would be taken away, but to lean it on the platform of the other car against the end of the car. The operation required he work of three or four men, and they were in charge of the plaintiff himself as a gang of laborers, that is, as among themselves he was the superior. At the time of the accident two of the men were on the car with crow-bars pinching the basket along, and had pinched it out onto the beams. The plaintiff and another man were on the ground with crow-bars to keep the basket from pushing off sidewise. While the plaintiff was thus engaged, the pushing of the basket along the iron straps caused the straps themselves to slide along on the wooden beams instead of the basket sliding on the straps; and the straps, or one of them, moved forward along the beam and the end of it pushed against the end gate of the car, which was standing against the end of the other car, and caused it to fall, and it fell on the plaintiff, causing the injury of which he complains. The plaintiff testified that when he was told to unload the tanks in this way he complained to the Superintendent that it was dangerous to do so, and that there ought to be a crane or swinging derrick used, and that the Superintendent told him they would get a derrick after awhile, but that he should go ahead and unload them in the manner directed. If the basket had fallen from the beams, or if the beams had fallen down and hurt him, or any other accident had happened which would probably be in contemplation of the parties when complaint was made as to the apparatus employed in unloading the car not being safe, we would have no Miller vs. Republican Chemical Co. hesitation in saying that the plaintiff had made out a case. The accident which did happen hardly seems to have been the proximate result of any failure or unsafe condition of the apparatus which was in contemplation of the parties when the plaintiff complained of its insufficiency, and might therefore be considered not to be within the risk which the Superintendent directed the plaintiff to assume and thereby put the burden of it upon the company and took it away from the plaintiff. The question, however, of whether or not the method used was unsafe or not, and what accidents might be expected to happen by reason of the use of it, was a matter of fact rather than of law, and was therefore a question for the jury. Upon consideration, therefore, of the whole case we are of opinion that the motion should be refused. The motion for judgment non obstante veredicto is refused, and it is ordered that judgment be entered for the plaintiff on the verdict upon payment of the verdict fee. Commonwealth of Pennsylvania vs. Blackstock. Evidence-Alibi-Defendant Testifying in His Own Behalf-Perjury. Defendant accused of robbery was one of four arrested for the crime. When testifying in his own defense, he set up an alibi. Two of the others, tried later, set up an alibi, and the third said he happened upon the scene at about the time the officers arrived and was apprehended. All denied knowledge of the crime. When called for sentence defendant, after all had been together in jail for a time, admitted his guilt and stated that none of the other three had been associated with him in the robbery. Held: That one testifying in his own defense is under the same obligation to tell the truth as any other witness, and defendant was unworthy of belief, and should be prosecuted by perjury by his own confession. Motion for New Trial. No. 4 June Sessions, 1915. O. & T. Allegheny County. Arthur F. Schmidt, Assistant District Attorney for Commonwealth. SWEARINGEN, J., July 3, 1915.-On the night of May 22, 1915, Edward Hess was robbed in the East Park, North Side, Pittsburgh, by five or more men. Jerome Blackstock, the defendant, was indicted for the robbery, as being one of the parties, and was convicted. At his trial, he was called as a witness in his own behalf and testified positively that he was not present at the commission of the crime, but that he was at the time elsewhere and was drunk; and he undertook to account for all his movements during the night of the robbery. After the verdict, he was remanded to await the result of the trial of three others, who were charged with the commission of the same offense. They were tried about two weeks later and were convicted. They all denied that they were concerned in the crime-two of them relied upon an alibi, and the third said he just happened upon the scene as the assailants were escaping and the officers were arriving, and he was then apprehended. When all four were called for sentence. Blackstock made a statement in which he declared that he was guilty and that his associates were not the three who had been convicted, and he gave the names of those who were with him. Since their respective arrests, all four of the prisoners have been incarcerated in the County Jail, where of course they could converse together almost every day. If Blackstock's statements, made when he was called for sentence, are true, he wilfully testified falsely at his trial. If he be guilty as he now Commonwealth of Pennsylvania vs. Blackstock. states, and we have no doubt of it, and the other part of his statement, that the other three defendants were not present, be untrue, then he was attempting to deceive the Court and endeavoring to pervert justice. It is hardly credible that any part of his statement is true, except his admission of guilt. Before he made the statement aforesaid, we had concluded to deal with him leniently on account of his youth. But in view of what has occurred, we think he should be remanded for further proceedings. The law has justly and mercifully provided that one charged with crime shall be a competent witness in his own defense. But, let it always be remembered that a defendant, who is sworn in his own case, is under the same obligation to tell the truth as any other witness. If he disregard that obligation, he is visited with the same penalties as are others. By his own confession, Jerome Blackstock must have committed the grave offense of perjury. It therefore becomes the painful duty of the Court to direct the District Attorney to institute the proper proceedings, in order that Jerome Blackstock may be brought to trial for the last-named offense. ORDER. And now, to wit, July 3, 1915, it is ordered that Jerome Blackstock be remanded to jail for further action by the Court, in the above-stated case, and it is further ordered that the District Attorney of Allegheny County take such proceedings against the said Jerome Blackstock as may be necessary, in order that he may be brought to trial for perjury. Maloy vs. Borough of Duquesne. Trespass-Surface waters Plaintiff sued borough to recover damages caused by water, in times of heavy rains, flowing over the sidewalk into plaintiff's cellar. It was alleged, that, in grading, paving and curbing the street, the side of the street opposite plaintiff's property was higher than called for by the plans, and as a consequence water accumulated because of an inadequate manhole in front of plaintiff's property. Held, If the damage was caused by improper grading, paving and curbing of the street plaintiff should have collected damages in the proceedings before the viewers, and, if the damages resulted from the insufficiency of the manhole and sewer provided by the borough authorities, there was no cause of action, and in the absence of allegations that the street and sewer were kept or maintained in a negligent manner, a non-suit was properly entered. Sur motion to take off compulsory non-suit. No. 366 April Term, 1914. C. P. Allegheny County. Scott & Purdy, for plaintiff. W. M. Ewing, for defendant. SHAFER, P. J., July 1, 1915.-The action is trespass against the defendant Borough for damages caused by water, in times of heavy rains, flowing over the sidewalk into the cellar of plaintiff's house. The allegations of plaintiff's statement of claim are that Priscilla Avenue, the street upon which plaintiff's property abuts, was graded, paved and curbed by the borough, and that by reason thereoof all the water flowing from certain streets was accumulated upon the street in front of plaintiff's property, and that the southerly side of Priscilla Avenue opposite her property is improved to a higher grade than the northerly side, and that in front of her property is a manhole designed to let the water into the sewer, and that the southerly side of Priscilla Avenue is improved to a higher grade than the plans called for, and that since the improvement of the street, on account of the grade, water is caused to flow to the intersection of two |