Cobb v. Atlantic Coast Line Ry. Co.

• Decision Date: 27 February 1918
• Docket Number: 57.
• Citation: 95 S.E. 92,175 N.C. 130
• Parties: COBB v. ATLANTIC COAST LINE RY. CO. ET AL.
• Court: North Carolina Supreme Court

95 S.E. 92

175 N.C. 130

COBB v. ATLANTIC COAST LINE RY. CO. ET AL.

No. 57.

Supreme Court of North Carolina

February 27, 1918

Appeal from Superior Court, Wilson County; Daniels, Judge.

Action by M. C. Cobb against the Atlantic Coast Line Railway Company and others. Judgment for plaintiff in part, and he appeals. No error.

In action for damages to property by blasting in quarry instruction that, if the blasting was mere negligence, and was not done willfully and wantonly, to answer negatively the special issue whether the trespass was wanton and willful and in reckless disregard of plaintiff's rights was proper.

In action for damages to property by railroad's blasting operations in quarry, answering affirmatively special issue whether the operations were done willfully, etc., would have permitted an award of punitive damages, but did not require it, but negative answer precluded such award.

Civil action, tried at October term, 1917, upon these issues:

(1) Was the plaintiff, M. C. Cobb, damaged by the trespasses of the defendants, as alleged? Answer: Yes.

(2) What amount of damages by way of compensation is the plaintiff entitled to recover? Answer: $15.00.

(3) Were such trespasses committed wantonly and willfully, and in reckless disregard of the plaintiff's rights? Answer: No.

(4) What amount of punitive damages, if any, is the plaintiff entitled to recover? Answer.

From the judgment rendered, the plaintiff appealed.

H. G Connor, Jr., of Wilson, for appellant.

F. S Spruill, of Rocky Mount, for appellees.

BROWN J.

This action is brought to recover damages arising out of blasting operations conducted by defendant Railroad Company upon its quarry near plaintiff's lands. The evidence tends to prove that the effect of the blasts was to throw quantities of loose rock upon plaintiff's land, breaking shingles, injuring houses, causing his laborers to leave work, and materially injuring plaintiff's property.

As the jury found for plaintiff on first and second issues and he did not appeal, the assignments of error are necessarily confined to the third issue. For the purpose of proving that the alleged trespasses were wanton and willful the trial judge permitted plaintiff to introduce an injunction order issued by Devin, J., restraining defendant pendente lite, and evidence that the defendant violated the restraining order by continuing the blasting operations while the order was in force. Cobb v. Railroad, 172 N.C. 60, 89 S.E. 807. Among the other allegations in the complaint, plaintiff avers that defendants were cited for contempt of court for violating said injunction, and punished by fine therefor. The defendant moved to strike out this allegation, which motion was allowed, and plaintiff excepted. During the progress of the trial, the plaintiff offered in evidence a rule issued by Judge Connor, July 8, 1916, and the judgment of Judge Whedbee, rendered upon said rule, and also offered in evidence the rule issued by Judge Connor, August 11, 1916, against the defendant railroad and its codefendants, and the judgment of Judge Allen thereon of September 8, 1916. Upon objection, these two rules and the judgment rendered thereon were excluded, and the plaintiff excepted. We think the exceptions cannot be sustained. The controversy embodied in the third issue was as to the wanton and willful character of the trespass. For the purpose of sustaining plaintiff's contention that the acts of defendant were willful, wanton, and in disregard of plaintiff's rights, the court permitted the plaintiff to introduce the injunction order and to prove that the acts were continued while the injunction was in force, and consequently in violation of it. These facts were clearly relevant to the issue, but we fail to see what bearing the subsequent proceedings in contempt could have.

The jurors had before them the injunction order restraining the defendant, together with the...