
    CAIN et v. MATTHEWS SELECTED DAIRIES CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3066.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    855. NUISANCE — 639. Injunction.
    Use, by milk company, of trucks with steel1 shod wheels, over concrete sidewalk, causing noise in early hours of morning, thereby disturbing rest and sleep of neighboring residents, enjoined.
    Appeal from Common Pleas.
    Injunction granted.
    Bettinger, Schmitt & Kreis, Cincinnati, for Cain et.
    E. S. Morrissey and John C. Herman, Cincinnati, for Dairies Co.
    STATEMENT OP FACTS.
    Plaintiffs’ action is for an injunction, seeking an abatement of an alleged nuisance, claimed to have been created by the activities of the defendant in its operation of a milk and dairy business.
    The record, discloses that the defendant owns and maintains a large central plant, for the aollection and distribution of milk and milk products, on the west side of St. James Avenue, in Walnut Hills, Cincinnati, Ohio; that it is an old established business; that since its installation and operation, the territory across St. James Avenue has developed into a residential section, and residences are owned and occupied by the plaintiffs in this case. It appears that the defendant, in the “operation oE its business, loads many of its delivery wagons, in fi out of the building, on the sidewalk of St. James Avenue, immediately opposite the residences of the complainants.
    It is claimed that the loading of the product on the delivery wagons, for distribution, is done in the early hours of the morning; that great and unnecessary noise is created by the defendant in its loading, thereby disturbing the rest and sleep of the residents complaining; that the unnecessary noise 'is caused by the clash of milk bottles and crates, the movement of steel shod trucks over'the concrete 'sidewalk, loud talk, squeaking of brakes, and other minor noises.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

We are limited to a consideration of the loading of the product in a manner creating unnecessary noise and confusion, and disturbing the plaintiffs in the enjoyment of their morning rest.

We have considered the evidence fully, as disclosed by the record, and we are of opinion that many of the things complained of have been eliminated, and other matters complained against are of a trivial nature.

We are of opinion, however, that the rolling of the trucks, loaded with crates of bottles, ■over the concrete sidewalk is a matter of just •complaint, and is a matter not difficult for the ■defendant to overcome.

There is some evidence introduced by the defendant that the elimination of the steel shod wheels of the trucks is wholly impracticable; that rubber tired wheels on such trucks have not been found to be practicable. We are not impressed with the evidence on that question in this day and age of rubber tires on all vehicles, light and heavy.

Our conclusion is, that the use of the trucks with steel shod wheels over the concrete sidewalk ought to be enjoined; that there is no reason at this time to enjoin any other acts complained against, for th^ reason, as heretofore stated, that much of the noise has been eliminated, and other complaints are trivial.

A decree may be presented in accordance herewith.

(Mills and Cushing, JJ., concur.)  