Arthur v. Henry
| Decision Date | 20 December 1911 |
| Citation | 73 S.E. 206,157 N.C. 393 |
| Parties | ARTHUR v. HENRY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Carter, Judge.
Action by John P. Arthur against Philip S. Henry and another. From a judgment for plaintiff, defendants appeal. Affirmed.
Where in an action for the negligent operation of a quarry, there was no evidence of injury to the health or person of plaintiff, nor suggestion that he claimed damages on that account, but the evidence confined the damages to his land the refusal to charge that there was no evidence that plaintiff sustained any personal injury was not erroneous though the court might have given the charge as a precautionary charge.
This action was brought by the plaintiff against the defendant to recover damages alleged to have been sustained by the plaintiff on account of the operation of a stone quarry by the defendant Philip S. Henry on land belonging to the defendant and adjoining plaintiff's land. An injunction was sought in the case against all the defendants, but damages claimed only as against the defendant Philip S Henry. The plaintiff claimed that the defendant had operated his quarry, which was within a few feet of the line between plaintiff and defendant, and about 400 feet from the plaintiff's house, in a negligent, careless, and reckless manner, and had thrown stones, dirt, dust, and other substances on the plaintiff's premises; had killed and destroyed his fruit trees, shade trees, herbs, and grass; had thrown stones and dirt and dust into and on the plaintiff's house; and had, by means of the noise caused in the operation of said stone quarry and in operation of a stone crusher as a part thereof, created a nuisance and seriously damaged his property. The plaintiff also claimed that the defendant had made a lease of his stone quarry for the purpose of avoiding liability for damages to the plaintiff, and that the lessee, Faragher Engineering Company, operated said quarry in a negligent, careless, and reckless manner, damaging his property; and, further, that all of these acts were done by the defendant willfully and wantonly and committed for the purpose of injuring the plaintiff, and with the knowledge that said action would injure the plaintiff and his property.
The quarrying was begun in May or June, 1904, and blasting was necessary and resorted to, and, in the progress of the work stones were thrown upon the plaintiff's land and on his house. The defendant carried on his operations from June, 1904, to some time in October, 1906. The evidence of the plaintiff himself shows that he had no personal knowledge as to the date of the commencement of these operations, being away from home at the time; that on his return he found that a rock had been thrown onto the roof of his house, injuring it, requiring an expense of $1.50 for repairs, which defendant paid. Upon the throwing of the stone on the house appellant ceased his operations and did not resume until plaintiff consented he might. No stones were ever thrown upon the house after the first one, but were thrown in his yard. The plaintiff was never at home when the blasting was going on, but at his office in the First National Bank Building and Library Building, but could hear the explosions.
He made no claim for the injury done the house, and makes none in this action, and said on his examination that he did not claim damages prior to the 4th day of August, 1906. In July, 1906, the attorney in fact of appellant leased the quarries to a corporation called Faragher Engineering Company, and this company began operating the quarries about August or September afterwards, and continued until March or April, 1907.
There was evidence showing that the plaintiff owned a lot of land in the city of Asheville, consisting of several acres, where he resided with his sister, both being unmarried; that defendant purchased a tract of land adjoining the plaintiff's; that the defendant's land was situated south and east of the plaintiff's land on the side of the Town Mountain in the corporate limits of Asheville; that the defendant's land lay considerably above the plaintiff's land; that in 1904 the defendant opened up a stone quarry on his land at a point about 30 or 40 feet from the plaintiff's line, and about 400 feet from the plaintiff's house, but at an elevation of 50 to 100 feet above the plaintiff's residence; that this stone quarry was operated by means of blasting; and that a stone crusher was operated at the quarry, where the stone was crushed into dust and small pieces of stone, which stone crusher was run by steam power. The evidence tended to show: That, beginning in 1904, the defendant had in person operated the quarry from time to time. That while he so operated it the plaintiff's lands were damaged, as alleged by the plaintiff. That in June and September, 1905, and February, 1906, the defendant told the plaintiff that he wanted an agreement drawn whereby the quarry could be operated without liability on his part, and proposed to make some arrangement with insolvent persons to conduct the quarry, and, after considerable talk about the matter, there were some bitter words between the parties; the defendant saying, "I will find a way to use that quarry without being liable." That in July, 1906, the defendant leased the quarry to the Faragher Engineering Company, to whom defendant had promised to lease it before he left for Europe. In this lease, defendant retained the right to have a representative at the quarries to measure the stone removed, and had the lessee to agree to indemnify him against all claims and actions for damages, but did not retain the right to supervise the proper and safe operation of those quarries, or require the lessee to agree to conduct them safely. Operations in the mine again began in 1909. There was also evidence that the defendant knew the injurious character of the operations at the quarry; that he knew the operations were calculated to injure the plaintiff; that he had endeavored to get the plaintiff to draw a contract whereby he would be released from liability, had endeavored to get him to act as his attorney and adviser, had proposed to lease the quarry to insolvent persons for the purpose of being relieved of liability, and finally had told the plaintiff that he would find a way to operate the quarry without liability; and that he leased the quarry to the Faragher Engineering Company. The defendant was absent from the state from May, 1906, to October, 1907.
At the conclusion of the evidence, the defendant moved for judgment of nonsuit, upon the ground that the operation of the mine up to the time the Faragher Company began work was with the consent of the plaintiff, and that the defendant was not responsible for the acts of Faragher Company, which was overruled, and the defendant excepted.
The defendant tendered the following issues, which his honor declined to submit, and the defendant excepted:
The court adopted the following issues, to which defendant excepted:
The defendant requested the court to instruct the jury as follows, which request the court refused, except as stated:
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