delivered the opinion of the court:
The first assignment of error to which our attention is called is that the relief granted does not correspond with the relief prayed in the bill. The prayer is, that the defendant be “restrained and enjoined from further operating and carrying on said home and hospital.” By the decree it is permanently restrained from carrying on and operating" a hospital in the building which it now occupies “during the continuance of the relative proximity of the complainant’s said residence and the building of the defendant heretofore used * * * as a hospital, and of the present internal and external construction of the defendant’s said building.” The relief granted is not as extensive as that prayed, but is not inconsistent therewith, and that granted is within the prayer of the bill, and the decree is therefore sustained by the bill.
It is then urged that as the hospital is not a nuisance per se, its operation cannot be enjoined until there has first been a determination by the verdict of a jury in an action at law that it is a nuisance.
Prom the evidence in this case it is clear and certain that the hospital conducted by appellant is a private nuisance. It not only destroys the peace, quiet and comfort of those living in the residence of appellee, but likewise seriously and injuriously affects their health, and occasions irreparable injury within the meaning of the law. Under these circumstances equity will interfere by injunction, without waiting for a determination of the question of the existence of the nuisance in an action at law. (Wahle v. Reinbach, 76 Ill. 322; Dierks v. Commissioners of Highways, 142 id. 197.) If there is such contrariety of evidence that there remains a substantial doubt whether a. nuisance exists, the question should first be determined in a suit at law. (Oswald v. Wolf, 129 Ill. 200.) In this case, however, there is no evidence which tends to show that a nuisance does not exist. The most that can be said for the evidence offered by appellant is, that.it indicates that the wrong is not of so serious a character as complainant charges, and that it may be lessened somewhat by certain precautions which appellant is willing to use hereafter. The proposed measures would not result in an entire removal of the nuisance. It is said that a screen may be erected between the two properties, and that the windows of the hospital may be kept closed and the curtains drawn on the side next the property of appellee. It is manifest that in the summer time the windows must be opened and the curtains drawn aside in ' both buildings for ventilation, and it is equally apparent that the screen would not prevent the cries of the suffering, the moans of the dying and other offensive noises being heard in the home of the appellee; nor would such an obstruction entirely prevent the transmission of the smell of iodoform, ether and other offensive substances; nor would the annoyance resulting" from the frequent .visits of the hearse and the ambulance to the hospital be materially lessened by the proposed precautions.
The work in which appellant is engaged is philanthropy of the highest order, but the law will not permit it to be conducted in such a manner that it becomes an intolerable nuisance to those who are in nowise responsible for its location and operation.
The statement is made that appellee had the power in her own hands, by mere request to those who were operating the hospital, to prevent the injury complained of, and it is insisted that she failed to speak when fairness and good conscience required her to make her objections known to the hospital authorities, and that she is therefore estopped to now seek the aid of a court of equity. Without stopping to consider at all this proposition of law, it is sufficient to say that the argument is based upon a misapprehension of the evidence. Prior to the establishment of the hospital appellee objected to its location in the building in question. She made these objections known to persons who were raising money by subscription to set the hospital on its feet, and offered a donation if it was located elsewhere. Prom the testimony of Mr. Walter Wyatt, secretary of the board of trustees of appellant, it appears that complaint was made to him by Cameron, the attorney for appellee, prior to the beginning of this suit, of the manner in which the institution was conducted. Wyatt, in substance, invited this litigation by stating to the attorney that he saw no way out of the matter except to bring suit. Wyatt, however, reported the complaint to the trustees, who took no action except to direct the superintendent to conduct the hospital in such a manner that there would be no complaint from any one. This direction bore no practical fruit.
The trustees testified that they did not know that the hospital was being conducted in a manner so offensive to those in the home of appellee; that had they known of the condition of affairs they would have minimized the evil as far as possible. This is no answer to the complaint. They were responsible for the management of the institution, and it was their duty to see that it was conducted in such a manner that the lawful rights of others were not infringed.
Prom the evidence before us, this difficulty seems to come about from the fact that the grounds occupied by appellant are wholly inadequate in extent for the operation of a hospital of the character there conducted.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.