Albison v. Robbins & White, Inc.

• Decision Date: 02 August 1955
• Citation: 116 A.2d 608,151 Me. 114
• Parties: Mildred Cobb ALBISON v. ROBBINS & WHITE, Inc. Percy G. FREEMAN v. ROBBINS & WHITE, Inc. Maxwell S. SHAW and Kathryn L. Shaw v. ROBBINS & WHITE, Inc. Robert F. WEBBER and Linnie A. Webber v. ROBBINS & WHITE, Inc.
• Court: Maine Supreme Court

Page 608

116 A.2d 608

151 Me. 114

Mildred Cobb ALBISON v. ROBBINS & WHITE, Inc.

Percy G. FREEMAN v. ROBBINS & WHITE, Inc.

Maxwell S. SHAW and Kathryn L. Shaw v. ROBBINS & WHITE, Inc.

Robert F. WEBBER and Linnie A. Webber v. ROBBINS & WHITE, Inc.

Supreme Judicial Court of Maine.

Aug. 2, 1955.

Joly & Marden, F. Harold Dubord, Waterville, for plaintiffs.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU, and TAPLEY, JJ.

FELLOWS, Chief Justice.

These cases come before the Law Court on plaintiffs' exceptions to the allowance by the Kennebec County Superior Court of a majority report of three referees.

These cases are four tort actions heard together by agreement in which the plaintiffs sought to recover damages for injuries to their respective houses resulting from blasting operations. The defendant was engaged in the construction of a certain tunnel for the Waterville Sewerage District located in close proximity to property owned by the plaintiffs and each of them, and during the course of the construction job, plaintiffs' properties were damaged as a result of blasting. The cases were referred to three referees with the right of exceptions reserved in matters of law.

After a full trial, two of the referees filed a report that in their opinion there is 'no proof' that the defendant was acting in a negligent manner, and found for the defendant. One of the referees filed a more comprehensive report and showed clearly that negligence had been established, and that there was liability on the part of the defendant. The defendant filed a motion with the presiding Justice of the Superior Court asking that the majority report be accepted, which motion was granted and the majority report allowed. Exceptions by the plaintiffs were taken and allowed. Plaintiffs filed a motion that the minority report be accepted which was denied and exceptions taken.

During the progress of the trial, plaintiffs offered evidence to the effect that the defendant's employee in charge of the blasting, after being told that the first blast or blasts had caused serious damage, had informed the plaintiffs, or several of them, that they had no cause to worry about the damage which was manifestly and admittedly being caused because the defendant was covered by liability insurance, and that the plaintiffs would surely be compensated. The purpose of offering this evidence was stated by plaintiffs' counsel as being to show that because the man in charge of the job felt that all damage would be compensated by an insurance carrier, he did not exercise the degree of care which he should have exercised, and therefore was negligent. This evidence was excluded by the referees, and exceptions taken.

The plaintiffs in objecting to the acceptance of the majority report, and in support of their objection, set forth the following specific grounds of objections.

'1. The majority of the referees erred in finding that the evidence did not support a verdict for the plaintiffs.

'2. The majority of the referees erred in finding that the plaintiffs had not proved the negligence of the defendant.

'3. The majority of the referees erred in finding that the defendant absolved itself of liability because of the testimony of the superintendent that he was using the least amount of dynamite that was possible to get the rock out.

'4. The majority of the referees erred in their conclusion that there was a burden on the part of the plaintiffs to show that the use of smaller charges of dynamite was reasonable and proper under the particular circumstances.

'5. The referees erred in excluding the evidence offered by the plaintiffs concerning statements made by the defendant's superintendent to the effect that the defendant was covered by liability insurance and that the insurance company would pay for any damage caused by the explosions, the plaintiffs having offered this evidence as bearing upon the question of defendant's negligence.'

The record shows that the defendant had about 150 feet of ledge excavation for a sewage tunnel to be made six feet square, and constructed to hold sewer disposal pipe. The tunnel excavation was a part of an extensive general contract in the city of Waterville, and the entire contract was to be completed within a year from the time the contract was signed.

At the first blasts, when the excavation was started, serious damage was done to the houses of the plaintiffs, and several plaintiffs went to the defendant's superintendent in charge and told him his blasting was seriously damaging their property. The superintendent told them that he was using the smallest amount of dynamite possible to get the work done, but he did not ever attempt to use a smaller amount to ascertain whether he could get rock out with the lesser charge. He continued to use the same methods as at first. The same charges of dynamite were used continually thereafter, causing great and continuing damage to the plaintiffs' properties with each blast.

The superintendent further said 'when we are through we will take care of all damage,' with further statements relative to insurance, which statements relative to insurance were excluded.

The defendant's superintendent said that he was using sixty sticks of dynamite, setting off twelve at a charge at one-fifth of a second intervals. When asked if he could not decrease the charge 'he said that he couldn't.'

The plaintiffs' houses and each of them were so shaken that ceilings and walls were cracked, dishes broken and thrown about and off shelves; ceilings fell; paper and paint injured; foundation walls were cracked; stairways damaged and torn from the wall; fireplaces and chimneys cracked and warped out of line and otherwise injured; openings made over windows and doors; large cracks opened in hardwood floors, and floors 'buckled.' In one instance the witness said his house 'dropped,' affecting all floors and staircases.

The majority report signed by two of the three referees citing the case of Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360, stated that 'there was no other evidence submitted as to whether this particular ledge in this tunnel could be broken with less dynamite, or by detonations over a longer period of time, or by use of some other precautions to prevent damage to property in the near vicinity, or by other explosives or instruments than dynamite. On this basis we are forced to conclude that there is no proof that the defendant was acting in a negligent manner.' The two referees found for the defendant.

The minority report by one of the three referees stated: 'I believe that as a referee, I can make certain assumptions based on the common knowledge and experience of everyone. It is not always necessary to introduce testimony to place certain evidence properly before a referee, juror or court. I know and believe I am entitled to consider in this case that the principal explosive ingredient in dynamite is nitroglycerin. A certain amount of dynamite will fracture a certain type of ledge. Varying the charge will vary the amount of ledge broken. Rock or ledge is rendered or fractured by the tremendous expansion of the gas released when the charge is exploded. The greater the charge, the greater is the expansion and the rendering and fracturing effect; the smaller the charge, the smaller is the expansion and the rendering and fracturing effect. These explosions cause more or less shock vibration in the area depending in some part on the size or quantity of the charge used. Less dynamite could have been used and less or no damage would have resulted and still rock and ledge in smaller quantities would have been rendered and fractured. The excavation would proceed at a slower pace but it could proceed.

'A contractor who undertakes to blast a tunnel 150 feet in length through ledge within a prescribed period of time should know he can complete his work within the prescribed time without damage to dwelling houses in the area. He should know the geological formation. Disregard of the nature of the formation and reliance on the unrestrained use of dynamite to complete his work in the prescribed time, regardless of damage to nearby buildings, would not be exercising due care.

'In any particular type of ledge, the power to fracture and break up a yard of ledge with one blast and the power to fracture and break up a foot of ledge with one blast depends mostly on the amount of dynamite used. This is all common knowledge.

'I believe jurors or referees would be obligated to take into account all of the foregoing in considering the question of liability, provided they had before them the pleadings and evidence we have before us.

In this case, the superintendent of the blasting operation was quoted as describing his method and the quantity used as follows:

"Q. Did you have any talk with him about the amount of dynamite he was using? A. Yes. He gave me a description of how he was doing it and the amount of dynamite he was using.

"Q. Did he tell you how many sticks he was using? A. Yes, he mentioned he was using sixty sticks of dynamite, setting off 12 at a charge at a fifth of a second intervals.

"Q. Did you have any conversation with him as to whether or not the amount of dynamite could be lessened? A. Yes. I asked if he could not decrease the charge, and he said that he couldn't. They had to get the job done so they would meet the other interceptor by June.'

'The superintendent used the same quantity and method in blasting throughout the entire length of the tunnel. He was warned that the shock and vibration was doing damage to the dwelling houses of the plaintiffs in the neighborhood when he was just starting in the tunnel, after he had probably constructed the first fifteen or twenty feet...