Aldridge-Poage, Inc. v. Parks

• Decision Date: 30 November 1956
• Docket Number: I,ALDRIDGE-POAG
• Citation: 297 S.W.2d 632
• Parties: nc., et al., Appellants, v. Katheryne Mackey PARKS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 632

297 S.W.2d 632

ALDRIDGE-POAGE, Inc., et al., Appellants, v. Katheryne Mackey PARKS, Appellee.

Court of Appeals of Kentucky.

Nov. 30, 1956.

J. W. Knippenberg, Lexington, Boehl, Stopher, Kilgarriff, Graves & Deindoerfer, and A. J. Deindoerfer, Louisville, George T. Ross, Richmond, for appellant Aldridge-Poage, Inc.

William B. Buford, Nicholasville, for appellant City of Nicholasville.

John S. Deering, William Hill Mackey, Nicholasville, for appellee.

WADDILL, Commissioner.

The Aldridge-Poage Company and the City of Nicholasville are appealing from a judgment against them for $10,200 in a suit brought by Katheryne Mackey Parks.

The defendant, City of Nicholasville, contracted with the defendant, Aldridge-Poage Company, for the construction of a water line from the Kentucky River to the city, the line to be built over a right of way furnished by the city. Simultaneously with the execution of that agreement, the city contracted with the Conn Construction Company for the erection of a power line over the same route.

In providing the necessary right of way for the power and water lines, the city obtained an easement over plaintiff's farm which contained the following provision:

'The City of Nicholasville, will bind itself * * * to properly repair damages to, or re-imburse the undersigned for damages to fences, crops, or other property of the undersigned resulting from the construction, repair, replacement or maintenance of said lines.'

The plaintiff instituted this action to recover damages against the city and the Aldridge-Poage Company alleging that her home and outbuildings were damaged by reason of Aldridge-Poage Company's negligence in setting off excessive charges of dynamite and other explosives in constructing the water line.

We will assume for the purpose of this opinion that the evidence established that the defendant Aldridge-Poage Company set off charges of explosives that produced concussions or vibrations in the surrounding earth that caused damage to plaintiff's buildings. However, under the rule prevailing in this state, there is no liability on the part of the Aldridge-Poage Company for damage so caused unless it is shown that the company performed its work negligently, and that the injury was the result of its negligence. Williams v. Codell Construction Co., 253 Ky. 166, 69 S.W.2d 20, 92 A.L.R. 737; Jefferson County v. Pohlman, 243 Ky. 556, 49 S.W.2d 344; Campbell v. Adams, 228 Ky. 156, 14 S.W.2d 418; Gibson v. Womack, 218 Ky. 626, 291 S.W. 1021, 51 A.L.R. 773. While we have serious doubt of the soundness of this rule, we have concluded not to re-examine it in this particular case. Plaintiff not only failed to show what the normal or usual methods of blasting would be in this particular situation, but also failed to prove that her damage was the result of negligence on the part of the defendant company. Hence, on this phase of the case, the circuit court should have directed a verdict in favor of the defendant Aldridge-Poage Company.

As concerns plaintiff's averment of a direct invasion of her property by throwing stones and debris thereon by blasting, a recovery may be had against the party committing such a trespass. Williams v. Codell Construction Co., 253 Ky. 166, 69 S.W.2d 20, 92 A.L.R. 737. We think the verdict of $200 for the damages resulting from the trespass was warranted under the proof and the judgment in this respect should be affirmed.

Under the covenant in the easement, the city unequivocally bound itself to...