In modern America, we are often assaulted by loud noises. For those many Americans who live near busy railroads and airports, the amount of noise can be punishing. Airplanes sometimes roar as they approach their runways. As approaches change, a new batch of property owners become impacted. And train sounds can be a chronic nuisance to nearby homeowners as well.

If planes or trains are your problem, it can be hard to win. Many laws have been enacted in this country which are designed to protect our air and rail industries. Largely because of these pro- air and rail laws, homeowners who have complained about noise from airports and passing trains have typically not done that well.

However, in a recent case entitled Rushing v. Kansas City Southern Railway Company, decided by a federal appeals court in August 1999, the little guy did very well. The case suggests that sometimes you can successfully fight for peace and quiet.

The Rushings are homeowners who, according to their lawsuit, lived fairly close to the railroad's main line. For some time, this really wasn't that great of a problem since trains only passed by a couple of times daily. However, in 1996 the railroad constructed a switching yard which was located only 55 feet from their home. Then, the noise problems became amplified.

According to the lawsuit, the switching operations at the yard were noisy and produced strong vibrations. Noise and vibrations allegedly resulted from cars colliding together as well as locomotive air horns and other warning devices.

The property owners claimed that they suffered from physical symptoms, anxiety and deteriorating health as a result of the continuing vibrations, noise and violent shocks that emanated from the rail yard. In addition, they alleged that the shocks caused their home to shift and to crack.

As if often the case, a federal trial court sided with the railroad and dismissed much of the lawsuit. The railroad hired an expert who took noise samples. The trial court found that the noise levels were protected by federal law, as were also the vibrations, which the trial court found were really the same complaint as the noise complaint. The court also found that a law called the Federal Railroad Safety Act barred the whistle claims.

Not ready to toss in the towel, the homeowners appealed to the federal appeals court and, to a large extent, they won. First, the homeowners claimed that the noise samples gathered by the railroad's expert were taken on an unusually quiet night and therefore were not representative of normal noise conditions. The appeals court found that, in effect, the railroad's expert noise tests may have been faulty because they may not have represented every day, real life conditions.

Second, the appeals court found that there was no evidence on which the trial court could have concluded that noise and vibrations are the same. Thus, the federal law that applied to noise may not have protected the railroad from the vibration claims.

Finally, the appeals court felt that a jury should have been allowed to decide whether the train whistles were triggered just for safety purposes. The residents alleged that the railroad over-used the horn and if that was so, the Federal Railroad Safety Act may not have protected the railroad from the homeowner's nuisance claims.

Now, homeowners can complain about noisy neighboring railroads and air approaches. While planes and trains are still hard to fight, it is possible to win. For those whose lives are affected by this kind of noise and vibration pollution, don't give up the fight: there may be hope for you.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.