Fitzsimons & Connell Co. v. Braun

• Decision Date: 25 October 1902
• Citation: 199 Ill. 390,65 N.E. 249
• Court: Illinois Supreme Court
• Parties: FITZSIMONS & CONNELL CO. v. BRAUN et al.

199 Ill. 390

65 N.E. 249

FITZSIMONS & CONNELL CO.

v.BRAUN et al.^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by Braun & Fitts against the Fitzsimons & Connell Company. From a judgment of the appellate court (94 Ill. App. 533) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Meek, Meek, Cochrane & Munsell (Lorin C. Collins and Wm. Meade Fletcher, of counsel), for appellant.

Moran, Mayer & Meyer (T. A. Moran, of counsel), for appellees.

BOGGS, J.

This is an appeal from the judgment of the appellate court for the First district affirming the judgment entered in the superior court of Cook county in favor of the appellees against the appellant company in the sum of $2,750. The declaration was in trespass on the case, and, in substance, alleged that the appellant company and the city of Chicago, in the prosecution of the work of constructing a tunnel intended for the use of the city in supplying the inhabitants thereof with water, near, through, or under certain premises belonging to the appellees, in excavating and digging the tunnel exploded heavy charges of dynamite, which so shook and jarred the foundations, walls, and floors of the building on the premises of appellees, and boilers, engines, machinery, and fixtures in said building, that the foundations, walls, and floors were made to sag, crack, and separate, which greatly, permanently, and irreparably impaired the appearance, strength, and stability of the said foundations, walls, and floors, and rendered said building less safe and useful, and much less valuable to plaintiffs, and because said building was originally constructed with the intention and in such a manner that other and additional stories would and could be added to it, which said additions have been rendered impossible by such injuries to said building, as the foundations and walls are now, on occount of the said injuries, too weak to sustain additional weight. Each of the defendants filed a plea of not guilty, and the cause was submitted to a jury for trial. During the hearing of the cause the same was dismissed as to the city of Chicago. Verdict in the sum of $2,750 was returned, and judgment entered thereon against the appellant company, and on appeal the judgment was affirmed by the appellate court.

The judgment should not be reversed because of any ruling of the court in connection with the testimony of the witness Harms or that of the witness Berrinson. The complaint, as framed by the appellant, is that Harms, a witness for the appellees, was allowed to testify in regard to the effect of the explosions on his property, and that the appellant company was denied the right to prove by the witness Berrinson that the explosions had no effect on his (Berrinson's) property. The contention of the appellees was that their property was injured by the explosions in the months of August and September, 1896. Harms testified that he owned property adjoining that of the appellees, and that he had frequently been in the building of the appellees since it was erected; that the walls of the building were in good condition ‘down to the summer of 1896’; that he saw them in August and September, 1896, and saw cracks in the walls on the Union street side. He was then asked, ‘Did you, during the latter part of August and fore part of September, 1896-- Were you disturbed by any noises there, or did you hear any noises?’ The witness then proceeded to tell that he had frequently heard explosions during those months, and spoke of one which he denominated ‘a heavy shot,’ and incidentally mentioned that the chimney fell from his building, and that a picture fell from the wall, and that a few days afterwards he heard another shock, and he went over to his building and found that his tenants were moving out; that he looked up at the factory of the appellees, and saw a crack opening in the wall of their building from the second story upward. The question was not propounded to Harms for the purpose of showing the injury to his building, but for the purpose of showing that the walls of appellees' building were cracked and broken by the explosions in the tunnel. The witness volunteered the statements as to the damage that resulted to his buildings, and on a motion of counsel for the appellant company that portion of his testimony relating to the tenants moving out of his building was stricken out by order of the court. It appears counsel later moved the court to strike out all the answer generally, and that no ruling was made on the motion. Counsel for appellant then cross-examined the witness, and brought out other details, which counsel for the city, then a codefendant with appellant, moved the court to strike out. The court granted the motion. Thus it appears the court ordered stricken out all irrelevant matter to which its attention was specifically called. The answer of the witness Harms was in part proper, and the motion to strike out the entire answer, which was not ruled upon, should have been denied. This testimony furnished no reason for the admission of the testimony of the witness Berrinson, to the effect, as counsel stated it would be, that the tunnel passed directly under the building of the witness, and that his building sustained no damage whatever by reason of the explosions in the tunnel. That other buildings at various distances from that of the appellees were not injured would not be competent, and would tend to introduce collateral issues likely to mislead and confuse the jury.

The remaining assignments of error present for decision the correctness of the rulings of the court in giving and refusing instruction. We need not set forth in full the instructions with relation to the liability of the appellant company for any injury or damage resulting from the use of dynamite. They announced, in substance, the proposition that one who makes use of an explosive in the ground near the property of another, when the natural and probable, though not the inevitable, result of the explosion is injury to such property of the other, is liable for the resulting injury, however high a degree of care or skill may have been exercised in making use of the explosive. The evidence disclosed that appellant was engaged in constructing a tunnel under contract with the city of Chicago. The contract forbade the use of explosives except where the excavation was in rock. The tunnel was of the depth of about 90 feet beneath the surface of the ground, and passed within a few feet of the corner of appellees' building. The appellant company used dynamite in excavating that portion of the tunnel, and the evidence showed that the explosions of the dynamite caused the earth upon which appellees' building stood to shake and vibrate, and that the walls of appellees' building were cracked and injured because of the explosions. The excavation...