A petition for rehearing was filed in this case and after due consideration a rehearing was ordered and the case was again argued by respective counsel. In the outset, let us make it plain that we have not held, and did not and do not intend to hold, that night baseball is a nuisance per se. (46 C.J., p. 648, sec. 5.) We have held, and so intended, that under the facts of this case, the game as permitted by respondent and played by the professional baseball club was in fact a nuisance to appellants in the use and enjoyment of their property.
We thoroughly appreciate the fact that night baseball has become a popular and wholesome sport, and that it affords entertainment and amusement to many people who could not witness or enjoy the sport in daytime, due to their business, professional, and other engagements. We are also cognizant of the fact that, in the pursuit of this entertainment and pleasure, its devotees have no right to trespass upon the premises or disturb the ordinary use and enjoyment of the homes of law-abiding, industrious citizens. There are certain reciprocal, indubitable rights and privileges to which each is entitled that must be respected by the other; and when appealed to, it is the duty of the courts to protect and assure. *Page 118 The game of night baseball should be played at such place and time, and under such restrictions and regulations, as to afford adequate accommodations and opportunities to the patrons of the game; and at the same time so as not to injure or destroy the property of others or render its uncomfortable or unusable or unreasonably impair it for its intended purposes.
In view of tile fact that there is such a great diversity of altitudes and climatic conditions between the cities, towns, and various communities, as well as two standards of time, in this state, which render it impractical to fix an hour for closing night games that will apply with equal justice to all places in the state, we have for those reasons concluded to remand the case to the trial judge, with directions to hear any additional evidence that may be offered on the single question as to the reasonableness of the time at which the game should close on this particular field, in order to properly protect appellants in their rest and the enjoyment of their homes and, so far as possible, give the baseball devotees an opportunity to see the games.
The judgment of the trial court is reversed and the cause is remanded with direction to hear any additional evidence thatmay be offered on the single issue as to reasonable hour atwhich the games should close in order to properly protect therights of appellants as above indicated. After finding the reasonable time at which the games shall close, the court will order an injunction, as heretofore directed in the original opinion herein, changing the time of closing to such time as the court finds reasonable.
Givens, Morgan and Holden, JJ., concur.