Gilbert v. Evens & Howard Fire Brick Company
| Decision Date | 05 February 1924 |
| Citation | 260 S.W. 790,214 Mo.App. 207 |
| Parties | HATTIE E. GILBERT, Respondent, v. EVENS & HOWARD FIRE BRICK COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.
AFFIRMED.
Judgment affirmed.
A. & J F. Lee and Joseph Renard for appellant.
(1 & 2) The demurrers to the evidence should have been sustained because, 1. The injury to the property could by reasonable inference have resulted from one of two or more causes, one of which would not render the defendant liable. Byerly v Light, Power & Ice Co., 130 Mo.App. 603; Waldman v Skrainka Const. Co., 249 S.W. 699; Kerr v. Busch, 215 S.W. 393; Warner v. Railroad, 170 Mo. 125. 2. The plaintiff failed to prove that defendant was guilty of negligence. Murphy v. City, 128 Mass. 396; Booth v. Railroad, 140 N.Y. 267; Johnson v. Railroad, 182 Mo.App. 349; Hoffman v. Walsh, 117 Mo.App. 278; Scalpino v. Smith, 154 Mo.App. 524; French v. Manufacturing Co., 173 Mo.App. 220. (3) Plaintiff's instruction on the measure of damages, and purporting to cover the whole case, is erroneous, because, 1. It fails to sumbit to the jury the question of defendant's negligence. (See authorities cited under Point 1.) 2. It is indefinite and misleading. 3. It is at variance with the pleadings and the evidence. 4. It is broader than the evidence. Rouse v. Fire & Marine Ins. Co., 203 Mo.App. 603; Stumpf v. United Railways Co., 227 S.W. 852; Hall v. Coal & Coke Co., In Banc, 260 Mo. 351; Greenstein v. Christopher & Simpson, etc., 178 S.W. 1179; Walker v. White, 178 S.W. 254. 5. The instruction told the jury to assess damages for the well if they found that the house and garage were damaged. (4) The admission in evidence of the testimony of Rachael Mawn was reversible error, because it purported to prove facts similar to those in issue without previously establishing that the existing conditions were identical. Osborn v. Eyster, 195 Mo.App. 520; Kirchgraeber v. Lloyd, 59 Mo.App. 59; 22 C. J., 752, 753. (5) The verdict is excessive, because the amount of the damage which plaintiff's testimony tended to establish was $ 590 while the verdict was $ 1750.
Grant & Grant for respondent.
(1) One who causes damage to the property of an adjoining property owner by blasting even on his own property is liable for such damage even though the blasting was done in a careful manner and there is no negligence. The injurious act is a trespass in which negligence is not a necessary ingredient. Johnson v. Railroad, 182 Mo.App. 349; Approved and followed in Taylor v. Walsh, et al., 193 Mo.App. 516; Faust v. Pope, 132 Mo.App. 287. (a) In the case of blasting the duty is to blast in such a way as not to injure others in the storing or manufacturing of explosives the duty is to store the explosive or to conduct the plant so as not to injure others. French v. Manufacturing Co., 173 Mo.App. 220; Scalpino v. Smith, 154 Mo.App. 524. (b) One is liable for any injury which is the direct result of his blasting even though conducted without negligence. Hoffman v. Walsh, 117 Mo.App. 278, 286. (c) An injunction is proper to restrain defendant from so blasting as to throw stones on adjoining property and to jar plaintiff's buildings. Blackford v. Construction Co., 132 Mo.App. 157. The great weight of authority in other States sustains the rule in this State. Watson v. Mississippi River Power Co., 174 Iowa 23; Louden v. Cincinnati, 90 Ohio St. 144, L. R. A. 1915, E 356; Hickey v. McCabe, 30 R. I. 346, 27 L. R. A. (N. S.) 425; Fitzsimons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 59 L. R. A. 421; Longtin v. Persell, 30 Mont. 306, 65 L. R. A. 655; Patrick v. Smith, 75 Wash. 407; Colton v. Onderdonk, 69 Cal. 155; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St. 560; City of Muskogee v. Hancock, 158 P. 622; and in England Fletcher v. Rylands, L. R. 1 Ex. 265, L. R. H. L. 330. (2) In the case at bar the defendant was a mere lessee taking out the clay for its own profit. The reasons upon which public service corporations or their contractors have escaped liability on the ground that the blasting was necessary to adapt the land to the public purposes for which it or the easement enjoyed was given them, do not apply here. (3) Plaintiff's instruction given by the court did not authorize any finding on account of damage to the well. Defendant's instruction (No. 4) expressly instructed the jury that there could be no finding in plaintiff's favor on this point. So the well was out of the case. (4) The verdict was less than the actual damage suffered by plaintiff on account of injuries to house and garage.
Plaintiff recovered a judgment in the sum of $ 1750 against the defendant in an action for injury done to her property alleged to have been caused by blasting of the defendant, which is a corporation and was engaged in the business of mining clay under the surface of the ground in the proximity of plaintiff's real estate.
Defendant, who in due course brings this appeal, urges as its first point that the trial court erred in not sustaining defendant's demurrer to the evidence at the close of the case because, (a) the injury to plaintiff's property, according to the evidence, could by reasonable inference have resulted from two or more causes, for one of which the defendant would not be liable, and (b) that plaintiff failed to prove that the defendant was guilty of negligence.
We address ourselves to the question of whether the plaintiff, though her petition alleges negligence on the part of the defendant, was required in an action such as this to prove negligence.
Irrespective of what the rule may be in other jurisdictions the rule approved by the Kansas City and Springfield Courts of Appeal of this State, is that blasting is an absolute necessity in excavating through beds of rock, in mining, in digging wells, in excavating foundations for buildings, in improving roads and streets, in digging canals, in building railways and in doing many other things and is not under all circumstances to be regarded as a nuisance per se and condemned as being negligent as a matter of law. On the other hand it must be regarded as a work which one proprietor may lawfully do upon his own land, provided he takes due care to avoid injuring persons or property in the vicinity and subject to his obligation to pay damages for any injury which he does in case his blasting involves a direct invasion of the premises of an adjacent proprietor. [Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853; Faust v. Pope, 132 Mo.App. 287, 111 S.W. 878; Scalpino v. Smith, 154 Mo.App. 524, 135 S.W. 1000; Johnson v. Railroad, 182 Mo.App. 349, 170 S.W. 456; Taylor v. Walsh, 193 Mo.App. 516, 186 S.W. 527.]
In the Scalpino case, supra, which was an action to recover damages for personal injuries inflicted by an explosion of dynamite, the point was directly raised that since plaintiff's petition, by specific allegations, based her right to recover on the negligence of the defendant, and since plaintiff failed to establish by proof the specific acts of negligence charged in her petition, the demurrer to the evidence should have been sustained. The court, in its opinion, held that the action was one ex delicto wherein the real cause is not negligence "but a different tort of which negligence may be an ingredient but is not an essential element, the averment of negligence should be regarded as immaterial and the pleader should not be held to proof of that which forms no essential part of his cause of action. Such is the view we expressed in Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853, where we said:
The above doctrine appeals to us as sound and we rule that the defendant must answer in damages for the consequences, if any, to plaintiff's property which may have been caused by the blasting on the part of the defendant, and that regardless of the question of the degree of care which it exercised in so doing.
As to the contention that defendant's demurrer should have been sustained in that the injury to the property under the evidence adduced could by reasonable inference have resulted from two or more causes, for one of which the defendant would not be liable, the point is without merit.
Plaintiff adduced testimony that she was the owner, since 1907, of three contiguous lots facing north on the Creve Coeur Lake Railroad; that she owned a seven-room house, built of concrete blocks, which was built upon the middle lot; that at the rear of the house she had built a garage with a loft and shingled gable roof; that the defendant company held a large tract of land immediately south of plaintiff's property under lease which it used for mining clay; that during the years 1918, 1919 and 1920 the defendant company was operating its mine for fire clay immediately south of plaintiff's premises; that the north tunnel of this mine or entrance, was fifty-seven feet from the south line of plaintiff's property; that the method of mining the clay by the defendant was to drill holes into the clay into which the miners inserted charges of black blasting powder; that each charge consisted of about one and one-half pounds of powder. The holes were tamped and the charge exploded. Each blast, if successful, loosened about four tons of clay. Blasting was done at the noon hour and again at the close of the work in the afternoon. Many blasts were shot each day...
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