dissenting.
Under the facts and the law it seems-that the judgment should be affirmed. The ordinance prohibits - the erection, on a certain designated part of a certain street, of all oil-filling stations of a certain class, namely, those “wherein motor-propelled vehicles are run in for the purpose of receiving g-asoline and oils.”
There is a stipulation in the record wherein, among other things, substantially these material facts appear: immediately east, and across Central avenue, from the proposed site of the oil-filling station is located the United States post-office, a two-story marble building erected at a cost of about $150,000, and also an apartment house. One block away from plaintiff’s lots is located the three-story 100-room Midway hotel, and just across the street therefrom, and one blpck from plaintiff’s lots, is the Christian church, and east and north of that church is a residence district. About a half block west of plaintiff’s lots is a Catholic church, and connected therewith is a parochial school which is open and in continuous session nine months in the year. A block south of the Catholic church and school is the Presbyterian church, and across the street east of the -Presbyterian church is the Christian Science church. Doth sides of the four blocks that are directly south of plaintiff’s lots are practically all built up with business houses. Central avenue, whereon the proposed oil-filling station is to be permanently located, is one of Kearney’s principal business streets and is' one of *565the main traveled routes from the business center on a paved street that leads to the State Teachers college. On the east and south sides of the block in which are situated plaintiff’s lots the sidewalks are about 20 feet wide.
It is into the midst of such an environment that there has been permanently located, almost under the eaves of a $150,000 federal building, by a judgment of this court, a noise-producing oil-filling station that is to be used, as we are informed by plaintiff’s brief, “in said business .of vending oils, grease, and gasoline.” The environment of the new structure will, as the stipulation shows, consist of a group of four leading churches, a church school, an apartment house, a large hotel, and the federal building; a residence section of the city being on one side and the business center on the other. The oil station is permanently established over the protest of the city council, and in violation of an ordinance, adopted under the police power, and contrary to a judgment of the district court pronounced by a judge who has resided in Kearney more than 30 years, and who has been a district judge for almost 20 years.
'One of Kearney's leading- citizens, who lives directly across the street from a “two-pump” oil-filling- station, testified, in substance, that on Saturday evenings, from 5 o’clock until midnight, and on Sunday afternoons and evenings and on holidays, the station does a very large business, and at such times from four to six cars stand and honk and wait, all clamoring to be served at one time, and that to add to the confusion about half of the cars while waiting permit their engines to run, so that the noise interferes with ordinary conversation on his porch and injuriously affects the health of his family. He further testified that 'the traffic on the street was congested by large motor trucks and mule trucks backing up to the curb to fill the tank of the station with gasoline almost every evening, and that it was further obstructed by from three to six cars' standing at the curb in the evenings waiting to have air pumped into the tires. *566ITe said Ms knowledge was confined to the hours he named ns he was not at home very much during the day throughout the week. No evidence was offered by plaintiff on the question of noise, other than that of an employee of plaintiff who testified that their men were instructed to ask car drivers to stop their engines while the tank was being filled. It is, however, suggested in plaintiff’s brief that it was the’ customers, and not the plaintiff, that created the noise and the confusion of which complaint is made. But that suggestion does not meet the objection. In view of the evidence it is perhaps well that the federal court has not yet begun to hold its sessions on the second floor of the federal building.
In its argument plaintiff contends that the ordinance is discriminatory because two “gasoline curb pumps’’ have been installed on the street in question. The contention is not sound. There is a vast difference between a “gasoline curb pump,” a temporary and transitory contrivance, installed before the passage of the ordinance in question, and a permanent “oil-filling station,” to be used for selling “oils, grease, and gasoline.” They are not in the same class, nor can a comparison properly be drawn between a “gasoline curb pump” that was first brought into use by the pioneer oil sellers, and now almost obsolete, and a pretentious, modern and permanent “gas-filling station,” the last word in architectural expression and design of the modern oil vender.
The majority opinion points out that the automobile, that indispensable adjunct of modern and social life, has ■come to stay; likewise the pedestrian. And -some inalienable rights remain to him. Among these is the right freely to walk in peace and in safety on either side of a public street that he may choose. It is obvious that an oil-filling station, located on a street comer in the business center, no matter how attractive, when newly built, in architectural design and appearance, with cars darting-in and darting out, across a greasy sidewalk, adds to the peril of the passing pedestrian, of whatever age o.r sex. *567Rut in its brief plaintiff: makes this argument in extenuation of its persistent anti unwelcome intrusion. It Says: “The slight inconvenience to pedestrians using the sidewalk on the same side of the street, although they could use the one on the opposite side, must as a public necessity be submitted to.” Doubtless the same argument, upon which comment may well be spared, was advanced in the district court and ivas noted by the trial judge.
It has often been said that the police power is to the state what self-protection is to the citizen. It is for the city council then, under that beneficent power, reasonably to determine in the first instance in what district certain occupations, and the erection of certain structures, shall be prohibited. Under the police power the city council may determine too whether the perils of automobile traffic to pedestrians upon the main street intersections, shall be diminished and the safety of the citizens enhanced, by preventing the establishment on its prominent street corners of such oil-filling stations and at such locations as the present case contemplates. And if complaint is made, as here made, and notwithstanding we must try th« case here de novo, we have held, in the past, that the judgment of the district court, in an equity case, should be given great weight by this court when sitting as a court of review. And this case is not an exception. The question is: Has the council been unreasonable in its exercise of the police power? I submit that it does not clearly so appear. I fear that the fact has been overlooked that a reasonable exercise of the police power inheres in the city council.
A citizen should not be permitted to so use his property as to thereby create a nuisance, nor to so use it that it will become a menace to the personal and physical safety of others. Plainly speaking, plaintiff has been given permission to do both. In support of the views expressed herein these authorities are cited: Ex parte Wolf, 14 Neb. 24; Peterson v. State, 79 Neb. 132; In re Anderson, 69 Neb. 686; State v. Withnell, 91 Neb. 101; *5682 McQuillin, Municipal Corporations, sec. 782, ancl volume 8, secs. 890-921.
For the reasons herein stated, I respectfully dissent from the opinion of the majority of the court.