Coalite, Inc. v. Aldridge

• Decision Date: 27 August 1968
• Docket Number: 6 Div. 331
• Citation: 45 Ala.App. 277,229 So.2d 524
• Parties: COALITE, INC. v. Leethel ALDRIDGE et ux.
• Court: Alabama Court of Appeals

Page 524

229 So.2d 524

45 Ala.App. 277

COALITE, INC. v. Leethel ALDRIDGE et ux.

6 Div. 331.

Court of Appeals of Alabama.

Aug. 27, 1968.

Rehearing Denied Oct. 8, 1968.

Bankhead, Petree & Savage, Jasper, for appellant.

Bill Fite, Hamilton, for appellees.

CATES, Judge.

Mr. and Mrs. Aldridge got a $1,000 negligence judgment because Coalite's strip mine blasting caused vibrations which shook their house.

The judgment below can only be upheld if the evidentiary rule of res ipsa loquitur applies to prove negligence as a product of vibrations or concussions from blasting. We hold it does and affirm.

I. Facts

Coalite, Inc., while engaged in strip mining, admittedly set off large quantities of explosives about 6100 feet from appellee's house.

Coalite did the blasting complained of during the months of June, July, and August of 1965. Shots were set off once a day, usually in the evening.

About 120,000 pounds of dynamite and ammonium nitrate were set off during this period. No rocks or debris were thrown upon the Aldriges's property.

Leethel Aldridge, one of the plaintiffs, testified that he heard the blasting and that it shook loose a rock pillar under the house causing it to sag an inch or two. A crack appeared under the back door and the kitchen flue was shaken off. Plaintiff estimated the total damage to the house to be $1,000.

Lorene Aldridge, the other plaintiff, testified that she heard the explosions on an average of one time a day. On the day when most of the damage occurred, she heard a real loud noise. Part of the flue fell in just before she heard this sound and caused extensive damage to the kitchen. Mrs. Aldridge jumped up, went to the door, and saw dirt 'and rocks going above the trees where the blast had taken place.'

Witness Wheeler, for appellant, testified that the blasting was done in accordance with the usual customary methods of shooting.

Wheeler testified (R. 70):

'The amount of the explosives, my instructions was to be as careful and all as we could about damaging things and so forth. We didn't want to put off oversized shots, So we just cut it down.' (Italics added.)

Roberts, the president of appellant, testified (R. 129, et seq.):

'Q How near were you to the residences where you were shooting down in the town of Brilliant?

'A We have shot within 300 feet of houses in Brilliant.

'THE COURT: Mr. Roberts, are you familiar with the rock formation up there where Mr. Aldridge lives? Have you ever drilled up there?

'WITNESS: Not at that particular spot. There is sand rock under most of the entire area. It varies in depth from four or five feet to 30 feet, and there is shale over there.

'THE COURT: Do you know the depth of the rock from the surface underlying where Mr. Aldridge's house is * * * How deep it is to the rock?

'WITNESS: I have not drilled it. I couldn't say, but I would guess * * *

'MR. FITE: Object to his guessing.

'THE COURT: Have you drilled anywhere nearby?

'WITNESS: I know that the rock down at the Box boy's mine and the rock at our strip pit north of it * * * between the two

'THE COURT: What is the similarity between them, the ground or rock structure, or formation?

'WITNESS: At Brilliant where we were blasting and out at Rock City Lake it is quite similar Birlliant has more shale. In the Rock City area there is more sandstone laying on the coal. The sandstone is a little thicker and denser than in the Brilliant area.

'Q (By Mr. Petree): On the occasions, Mr. Roberts, that you were there and observed the shooting that was going on at Coalite, Inc., during the summer of 1965, June, July and August, state whether or not, in your opinion, the superintendent and those shooting under his supervision were conducting the blasting operation in accordance with good blasting procedures?

'MR. FITE: We object to that as incompetent, irrelevant, and immaterial.

'THE COURT: Overruled.

'A Yes.

'Q When you moved into the Rock City Area with your mining operation did you take note of the fact that it was generally a residential area?

'A Yes, sir.

'Q Did you make any determination as to the size of shots you could explode out in that area * * *

'MR. FITE: We object to that as self-serving.

'THE COURT: Overruled.

'A All of our shots * * *

'MR. FITE: Object to that.

'THE COURT: Sustained.

'A Yes, sir.

'Q What was your answer?

'A Yes.

'Q Tell the Court and the jury what steps you took?

'A We followed government bulletin, Bureau of Mines, No. 442.

'MR. FITE: We object to that as incompetent, irrelevant, and immaterial.

'A * * * which is the only study I know of that has been made of blasts and the seismic effects of blasts, which study was made by the Chief of the Bureau of Mines, Department of Interior. It sets out the different modes of dynamiting in rock, outcrops, and other cuts, and we have gone strictly by this book.

'MR. FITE: We object to that self-serving statement.

'THE COURT: Sustained.

'Q (By Mr. Petree): Is this the book you have referred to which you obtained from the Government Bureau of Mines (indicating)?

'A Yes.

'Q Would you state how you utilize that book in determining what would be a safe amount of explosive to use when you are a certain distance from residences?

'MR. FITE: We object to that.

'THE COURT: Overruled.

'A The book has a table showing the displacement, various weights, sizes on different types of explosives in different columns. You determine by the use of these various columns the safe distance you can fire certain explosives * * * without causing damage.

'Q Will you tell the jury what was the average explosive load that you would use in firing shots down at the Coalite operation during the months of June, July and August of 1965?

'A 150 to 200 pounds to the hole.

'Q Well, what was the most explosive that would be fired at one time?

'MR. FITE: We object to that.

'THE COURT: Sustained.

'Q (By Mr. Petree): During the times that you were there what was the highest quantity of explosive that was fired during the stripping operation?

'A I have been there when we put 7,000 pounds in the ground. We fired it in the same pattern as indicated.

'Q Used a delayed pattern?

'A Yes.

'Q Will you take that table there and use 'quantity of explosion, 7,000 pounds', and see what the table shows to be the effect of the blast on a dwelling house situated 6,000 feet away?

'A By the way we shot or instantly?

'Q By the use of delays?

'MR. FITE: We object to it unless that book says that applies to this particular place. Apparently that book refers to something you do generally. It doesn't say * * *

'Q (By Mr. Petree): Well, Mr. Roberts, if you fired 7,000 pounds of explosive down there that operation through the use of a delayed pattern and in accordance with this bulletin 442 which you have referred to, would that cause any damage, whatsoever, to a house situated 6,000 feet away from that explosion?

'MR. FITE: We object to that. It invades the province of the jury.

'A No, sir, we could shoot 10 times that much safely.

MR. FITE: We move to exclude that as not responsive.

'THE COURT: Gentlemen, don't consider that last answer.

'Q (By Mr. Petree): Based on your knowledge of the firing that was done down there, and based on the times you were there present when the firing was done during the months of June, July and August of 1965, do you have an opinion as to whether any of those explosions could have caused any damage to Mr. Aldridge's house located 6,100 feet away?

'MR. FITE: We object to that. There is some testimony to the effect that his house was less than a mile away.

'THE COURT: Sustained.' (Italics added.)

II. Argument

Essentially Coalite argues here that the trial judge erred in refusing the affirmative charge (variantly phrased in Charges 29 and 30) and in overruling its motion for new trial because of the claimed validity of ground 2 thereof.

Coalite says that not a scintilla was adduced to show it was negligent toward the Aldridges. Conversely, to demonstrate no connection between injury and agency it says there was no 'proof that their damage was proximately caused by negligence of appellant in the conduct of its blasting operation.'

Other claims of error are set out in brief. However, they all are covered by (1) the trial judge's control over the qualification of expert witnesses, or (2) the harmless error rule (which inter alia would cover a vague jury direction ¹ as to fright as a ground for consequential damages).

We consider that, in these two last mentioned specifications, appellant has not demonstrated error to the degree of reversibility.

III.

Appellant argues:

'* * * In Mitchell v. Richardson, 277 Ala. 651, 173 So.2d 814, the Supreme Court of Alabama made this comment:

"Evidence here as to the noise and land vibrations caused by the blastings was insufficient, without more, to prove that the defendant was guilty of negligence as charged in the complaint.'

'The language of the Court in Republic Steel Corporation v. Peoples, et al. (1954) 217 F.2d 236, makes it clear that the mere fact of damage to the plaintiffs' residence is not sufficient to make out a prima facie case. * * *'

In the Republic Steel case, supra, the opinion expressly acknowledges fealty to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The opinion then anchors itself Alabama-wise on Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67.

This latter case was one of wantonness in acts of trespass and not for negligence. Moreover, the Supreme Court did not revise the opinion of this court (Birmingham Realty Co. v. Thompson, 8 Ala.App. 535, 63 So. 65) so that the Supreme Court's opinion is not as binding as if the Supreme Court had issued the writ and then affirmed. For both of these reasons, it seems that the Fifth Circuit's citation of it was a non sequitur.

We find this infirmity obliquely admitted in Codell-Oman Construction Co. v. Sorensen, 273 F.2d 703. ²

The Codell-Oman opinion refers to Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748...