Coalite, Inc. v. Weeks, 6 Div. 548

• Decision Date: 01 May 1969
• Docket Number: 6 Div. 548
• Citation: 284 Ala. 219,224 So.2d 251
• Parties: COALITE, INC. v. Hattie WEEKS.
• Court: Alabama Supreme Court

Page 251

224 So.2d 251

284 Ala. 219

COALITE, INC. v. Hattie WEEKS.

6 Div. 548.

Supreme Court of Alabama.

May 1, 1969.

Rehearing Denied July 3, 1969.

Bankhead, Petree & Savage, Jasper, for appellant.

James K. Davis, Hamilton, for appellee.

SIMPSON, Justice.

This is an appeal from a judgment for the plaintiff in a suit claiming damages for injury to the property of the plaintiff resulting from blasting operations conducted by the defendant.

The plaintiff alleged that the defendant was engaged in blasting operations for the mining of coal at places in close proximity to the plaintiff's property; that the defendant negligently drilled holes in the ground and negligently set off charges of high explosives resulting in damage to the plaintiff's dwelling house in that it was shaken, jarred and vibrated, and as a proximate result of the explosions and negligence of the defendant, windows were broken out of the plaintiff's house and cracks occurred in the outside and inside walls thereof.

The case went to the jury which returned a verdict in favor of the plaintiff in the amount of $5,000.00. This appeal followed.

While the appellant has assigned some fifty-five assignments of error, the gravamen of its contention is that the court erred in submitting the case to the jury on the evidence adduced, the contention being that the plaintiff did not carry her burden of proving that the damage to her house was the proximate result of the negligence of the defendant.

In a long line of cases--Bessemer Coal Iron and Land Company v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A., N.S., 389; Mitchell v. Richardson, 277 Ala. 651, 173 So.2d 814; Vulcan Materials Company v. Grace, 274 Ala. 653, 151 So.2d 229; Ledbetter-Johnson Company v. Hawkins, 267 Ala. 458, 103 So.2d 748--this court has held that injuries resulting from 'the mere concussion of the atmosphere, sound, or otherwise' are dependent for their recovery upon showing that the work was done negligently and that the injury was the result of that negligence, and not the result of blasting according to the usual methods and with reasonable care. In all of these cases this court recognized that the law is different in some jurisdictions in that it is not necessary that negligence be averred or proven where damages result from vibration or concussion on the plaintiff's land caused by the defendant's blasting.

The parties to this litigation are in agreement that it is necessary in this state that the plaintiff allege and prove that the blasting operations of the defendant were conducted in a negligent fashion. The disagreement in this case consists in the plaintiff's assertion that she carried this burden, and the defendant's assertion that she has not. Inasmuch as that is the case we have carefully read all of the evidence taken in the trial court. The plaintiff testified that she had lived in her house for twenty-eight years and that during the spring and summer of 1966 the defendant was blasting about a half mile from her house. She testified that 'A great impact would come. My dishes would rattle in the cabinets' that one such blast broke the window in her bedroom; that her house began to crack all over. 'I didn't know what happened and until it got to rocking so much when these great impacts would come and broke the windows out then I knew what was doing it and it just got a little worse and a little worse all the time.'

Following the plaintiff's testimony a neighbor, Mr. Baccus, testified for the plaintiff. Mr. Baccus testified that he owned land just north of that of the plaintiff and that he knew that the defendant was mining adjacent to his land. He testified that he had heard some explosions go off. His testimony was in this respect as follows:

'At times I would feel a little earth tremor' (when a blast went off).

'Q. Would it ever shock or shake your house?

'A. I could feel a tremor. * * *

'Q. Did you have one particular explosion that you complained of to the manager of Brilliant Coal Company and Coalite about?

'A. No.

'Q. Did you have one that you talked to Mr. Markham and to Mr. Wheeler about, the man that was doing the blasting? * * *

'A. One day I said 'That was pretty loud' or something but it was just in the form of laughing and talking with each other.

'Q. What complaint did you make?

'A. I didn't make a complaint exactly. We were just teasing. We were just laughing and talking around where they were working, and I said, 'I believe that was a pretty strong one'. We just stopped at that. I didn't make a complaint, that I would say.'

This witness then testified that Mr. Markham, an agent or employee of the defendant, told him, 'He said it might have been a little light to scatter rock. He said it might have been a little light surface. I'm not quoting his words, but what I got from what he said was probably that the cover was a little under what they estimated and the shot was probably...