Crocker v. W. W. Wyman, Inc.

Decision Date31 December 1954
Citation99 N.H. 330,110 A.2d 271
PartiesMichael CROCKER v. W. W. WYMAN, Inc.
CourtNew Hampshire Supreme Court

Howard B. Lane, Keene, for plaintiff.

Devine & Millimet, Manchester, for defendant.

DUNCAN, Justice.

The law relating to liability for damages caused by blasting varies with various jurisdictions. See annotation 20 A.L.R.2d 1374. By the weight of authority, liability without regard to negligence is imposed for direct injury to property by the casting against it of rocks or other debris from blasting. Where the injury results from concussion or vibration alone, the same rule is applied in some jurisdictions. Whitman Hotel Corp. v. Elliott & Watson Eng. Company, 137 Conn. 562, 79 A.2d 591; Hickey v. McCabe & Bihler, 30 R.I. 346, 75 A. 404, 27 L.R.A., N.S., 425; Federoff v. Harrison Const. Co., 362 Pa. 181, 66 A.2d 817; Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 80 A.L.R. 686. And see, Restatement of the Law: Torts, §§ 519, 520, comment c; Gregory: Trespass to Negligence to Absolute Liability, 37 Va.L.Rev. 359, 380, 395; Prosser: Torts, § 59. In other jurisdictions, notably in New York, proof of negligence is required in the latter class of cases. Booth v. Rome W. & O. T. R. Co., 140 N.Y. 267, 35 N.E. 592, 24 L.R.A. 105; Jenkins v. A. G. Thomasello & Son, Inc., 286 Mass. 180, 189 N.E. 817; Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360.

No cases directly in point in this jurisdiction have been found or called to our attention. In Bassett v. Dodge, 77 N.H. 602, 93 A. 967, the defendant's motion for a nonsuit was held to have been properly denied in an action to recover for the negligent burning of the plaintiff's buildings in consequence of a fuse being blown onto a roof by explosion of a charge of dynamite a few yards from the building. The evidence of the defendant's fault was held to present a jury question of 'whether the ordinary man would have exploded such a blast, in such a place, in such a way, on such a day, without doing anything whatever to protect the plaintiff's buildings.' In Honnon v. Kerr, 85 N.H. 386, 159 A. 121, the issue was whether the plaintiff was entitled to an instruction that the defendant was liable for damages caused by the use of dynamite when he had no permit from local authorities to use the dynamite. In entering judgment for the defendant, the court held the statute applicable only to sale, transportation, and storage of dynamite and not to its use in business, commenting that regulation of business use had not been thought necessary. 'Careful use is required regardless of the statute, reasonable anticipation of the results of its use is a duty of care, and care may mean every precaution human ingenuity may suggest. Blaisdell v. Davis Paper Company, 75 N.H. 497, 77 A. 485,' Id., 85 N.H. 388, 159 A. 121. No claim of absolute liability at common law appears to have been advanced.

In the case before us the plaintiff's declaration alleges negligence, and he recognizes that 'probably the absolute liability doctrine is not the law of New Hampshire.' Brown v. Collins, 53 N.H. 442; Bowdler v. St. Johnsbury Trucking Company, 88 N.H. 331, 333, 189 A. 353. See Smith, Liability for Damage to Land by Blasting, 33 Harv.L.Rev. 542, 667. The plaintiff argues however that there was evidence of negligence to warrant submission of the case to the jury, and further that the rule of res ipsa loquitur should apply, since the dynamite was at all times under the exclusive management and control of the defendant. See Foss v. Baker, 62 N.H. 247, 249; McCourt v. Travers, 87 N.H. 185, 186, 175 A. 865. The doctrine of res ipsa loquitur is one which this court had recent occasion to examine in Smith v. Coca Cola Bottling Company, 97 N.H. 522, 524, 92 A.2d 658, where its requirements were fully set out. For reasons there indicated it cannot be relied upon to establish causation in this case. See annotation 20 A.L.R.2d 1374, 1397-1398, supra. The damage to the plaintiff's building, situated as it was adjoining the public highway, obviously could have been caused by some agency or instrumentality other than the dynamite set off by the defendant.

The issue is whether there was evidence upon which a reasonable man could find that the damage resulted from the defendant's conduct and if so, that the conduct was negligent. With respect to the damage alleged to have been discovered in August, we think that there was such evidence. The evidence was that in June, 1952, the building was in good condition, that in July the defendant blasted out a nearby bridge abutment, and that in early August the damage described by the plaintiff and his expert was found to have occurred. The expert was a contractor with thirty years' experience in contracting and in the use of dynamite. He gave it as his opinion that the damage which he saw was caused by: 'Dynamite. Blasting.'

It is true that this evidence was to some extent circumstantial. No eyewitness testified that the blasting and the damage were simultaneous or even nearly so. Such damage could have resulted from other causes. The building was old, and closely adjacent to the highway where it would be subjected to the hazards of public travel and resulting vibration. The issue, however, was one to be determined according to the probabilities.

The failure to more closely identify the time of damage with the time of blasting, see Weaver v. Benson, Tex., 254 S.W.2d 95, 97, might affect the weight of the evidence, but it was not necessarily on that account speculative. Olena v. Standard Oil Company, 82 N.H. 408, 135 A. 27. Cf. Nadeau v. Stevens, 79 N.H. 502, 111 A. 749. The possibility that the blasting caused the damage could reasonably be found 'the most probable possibility disclosed by the evidence,' and blasting the most probable cause. Emery v. Tilo Roofing Company, 89 N.H. 165, 167, 195 A. 409, and cases cited.

The jury could find from other testimony by the same expert that the blasting operations would have caused no damage if properly conducted, and hence that the blasting was negligently done. The cases of Parent v. Nashua Mfg. Company, 70 N.H. 199, 47 A. 261, and Nadeau v. Stevens, 79 N.H. 502, 111 A. 749, supra, relied upon by the defendant do not require a different conclusion. In the Parent case it was held that there was no...

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9 cases
  • Coalite, Inc. v. Aldridge
    • United States
    • Alabama Court of Appeals
    • August 27, 1968
    ...Hence, the cases listed in footnote 18, p. 883, 31 Am.Jur., 2d, Explosions and Explosives, § 110, are only: 5 Crocker v. W. W. Wyman, Inc., 99 N.H. 330, 110 A.2d 271; B. G. Young and Sons, Inc. v. Kirk, 202 Va. 176, 116 S.E.2d 38. See also V. N. Green & Co. v. Thomas, 205 Va. 903, 140 S.E.2......
  • Descoteau v. Boston & M.R.R.
    • United States
    • New Hampshire Supreme Court
    • May 8, 1958
    ...probable of two possible causes of the explosion, for either of which the defendant could be found responsible. Crocker v. W. W. Wyman, Inc., 99 N.H. 330, 334, 110 A.2d 271; Leavitt v. Bacon, 89 N.H. 383, 392, 200 A. 399; Demers v. Flack, 88 N.H. 184, 186, 185 A. 896. See also, Emery v. Til......
  • King v. Blue Mountain Forest Ass'n
    • United States
    • New Hampshire Supreme Court
    • June 22, 1956
    ...has been no indication that, apart from statute, strict liability would be imposed in cases involving blasting, Crocker v. W. W. Wyman, Inc., 99 N.H. 330, 333, 110 A.2d 271, or in cases involving dangerous domestic animals. Login v. Waisman, 82 N.H. 500, 136 A. 134. In the recent case of Sl......
  • Kimberly F. v. Mary Hitchcock Memorial Hosp.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 3, 1993
    ...and blasting the most probable cause. Emery v. Tilo Roofing Company, 89 N.H. 165, 167, 195 A. 409, and cases cited. Crocker v. W.W. Wyman, Inc., 110 A.2d 271, 274 (N.H. 1954). In Emery v. Tilo Roofing Company, 89 N.H. 165, 195 A. 409 (N.H. 1937), the issue was the cause of a fire to the roo......
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