Enos Coal Mining Company v. Schuchart

• Decision Date: 08 February 1962
• Docket Number: No. 19421,No. 1,19421,1
• Citation: 180 N.E.2d 129
• Parties: The ENOS COAL MINING COMPANY, Appellant, v. Earl F. SCHUCHART and Clydia E. Schuchart, Appellees *
• Court: Indiana Appellate Court

Page 129

180 N.E.2d 129

The ENOS COAL MINING COMPANY, Appellant, v. Earl F. SCHUCHART and Clydia E. Schuchart, Appellees^*

No. 19421.

Appellate Court of Indiana, Division No. 1.

Feb. 8, 1962.

Gray & Waddle, Carl M. Gray, Edward L. Waddle, Petersburg, for appellant.

Joseph B. Monor, James Y. Wood, Evansville, for appellees.

COOPER, Judge.

This matter comes before us from the Pike Circuit Court wherein the appellees brought an action for alleged damage to their dwelling house alleged to have been caused by vibration as a result of the setting off of explosives by the appellant in its coalmining operation while using the strip mining method on the appellant's real estate.

After the issues were properly closed, the cause was submitted to a jury, and the jury returned a verdict for the plaintiffs in the sum of Eight Hundred Ninety Five ($895.00) Dollars. Thereafter, the appellant filed his motion for a new trial, consisting of thirty-nine assignments of error.

The trial court overruled the appellant's motion for a new trial and this appeal followed.

The appellant's assigned error is, 'The court erred in overruling appellant's motion for a new trial'.

Because we have determined that the verdict of the jury is contrary to law, as charged in the appellant's motion for a new trial, we need not discuss the other specifications of error averred in the appellant's motion for a new trial. Tribune-Star Pub. Co. v. Fortwendle (1953) (1954) 124 Ind.App. 618, 115 N.E.2d 215, 116 N.E.2d 548; Flowers v. State (1956) 236 Ind. 151, 139 N.E.2d 185.

It has been said, in substance, that any decision or verdict is contrary to law if any statute, constitutional provision, legal principle or rule of substantive or procedural law has been violated. See Pub. Ser. Comm. of Ind. v. Chicago, I. and L. Railway Co. (1956) 235 Ind. 394, 399, 132 N.E.2d 698, 134 N.E.2d 53.

The appellees conceded in both oral argument and by their brief that they proceeded solely upon the theory of absolute liability in the court below, and also that the trial court adopted and instructed the jury upon the absolute liability theory. We do not deem it necessary to unduly lengthen this opinion by setting forth the pleadings, evidence, instructions, etc., but believe it sufficient to say we do not believe that the 'absolute liability theory' has been adopted in Indiana with reference to actions for alleged damages allegedly caused by vibrations created from a blasting operation in a lawful endeavor, under the doctrine of the English case of Rylands v. Fletcher (1868) L.R. 1 Ex. 265, 1868, L.R. 3, H.L. 330.

In this country, the doctrine of absolute liability for abnormal conditions and activities is a comparative recent one in law. The leading case from which it has developed is the case of Rylands v. Fletcher, supra. The gist of the doctrine emerging from the foregoing case is, in substance, that one who engages in an ultra-hazardous or inherently dangerous activity is absolutely liable for any harm caused thereby without regard to negligence, proximate cause, or the care one exercises to prevent harm.

A review of the authorities reveals that this doctrine is rejected by many states, including, we believe, Indiana. See Lake Shore, etc., R. Co. v. Chicago, etc., R. Co. (1910) (T.D.1911) 48 Ind.App. 584, 92 N.E. 989, 95 N.E. 596; Button v. Pennsylvania R. Co. (1944) 115 Ind.App. 210, 57 N.E.2d 444, 446; Boonville Collieries Corp. v. Reynolds (1960) 130 Ind.App. 331 163 N.E.2d 627.

The law is interested in the preservation of property rights and also the protection of property rights from injury. As we see it,...