Harbison-Walker Refractories Co. v. Scott

• Citation: 185 Ala. 641,64 So. 547
• Parties: HARBISON-WALKER REFRACTORIES v. SCOTT.
• Decision Date: 12 February 1914
• Court: Supreme Court of Alabama

64 So. 547

185 Ala. 641

HARBISON-WALKER REFRACTORIES v. SCOTT.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by Dixie Davis Scott against the Harbison-Walker Refractories Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Anderson C.J., and McClellan and Mayfield, JJ., dissenting in part.

The ninth count is as follows: "Plaintiff claims of defendant the other and further sum of $500 as damages for that plaintiff is the owner of a certain lot in the city of Piedmont, Ala., known as lot 52, in block 52, and of a two-story frame residence thereon situated. [ Here follows a fuller description.] And defendant, on, to wit, March 1 1911, and on divers days thereafter, was engaged by and through its agents and servants in mining and quarrying stone at or near Piedmont, Ala., and in said mining or quarrying operations defendant used powder, dynamite, or other explosives; and plaintiff avers that she notified defendant's agent in charge of said work that it was injuring and damaging plaintiff's said residence by reason of the explosions in and about its said mining or quarrying operations, and requested said agents or servants of defendant to desist from said injuries and damages; and plaintiff avers that, notwithstanding defendant's agents and servants were informed of the damage and injury that was being done to plaintiff's property, nevertheless the defendant's said servants or agents, who were engaged in said mining operations, after being so informed, wantonly and recklessly used the explosives in such quantity and to such an extent as that the blasts which were exploded therefrom shook and jarred plaintiff's said house, greatly injuring and damaging same." Here follows detail of the injury.

The evidence relative to the qualification of George D. Harris to answer the questions propounded in assignments of error 6 and 7, is as follows: "I have had a great deal of experience in the blasting of solid rock like that up in the mountain. My experience was in helping to build a number of railroads and on all of these railroads I have done blasting. The heaviest blasting I have done was on the Seaboard, out near Ragland, in a rocky country." The sixth assignment of error is as follows: "Question propounded to Harris over objection of defendant: 'I will ask you to state whether or not, in your judgment, the blasting that was done by defendant there was heavier than was reasonably necessary to remove solid rock?' " Assignment 7: "Question to same witness over objection of defendant: 'I will ask you to state if solid rock can be successfully removed with less severe blast than the blasting of this defendant, judging from what you saw, and the jar and vibrations you experienced?' " It further appears from the evidence of this witness that he was living in the house alleged to have been injured while the blasting was going on, and that he saw the result of the blast, and felt the vibration.

Charge G is as follows: "The court charges the jury that the burden of proof is on plaintiff in this case to show that defendant used dynamite in excess of what was reasonably necessary to have loosened or removed said rock."

Willett & Willett, of Anniston, for appellant.

Knox, Acker, Dixon & Sterne, of Anniston, for appellee.

McCLELLAN J.

The action was for damages to property in consequence of the setting off of explosives in and about quarrying stone. The appellee was the plaintiff, and the appellant the sole defendant.

On the first question presented, Justice SOMERVILLE expresses the views of the majority:

"The ninth count of the complaint charges that defendant was engaged in blasting on its own premises, and that, though notified by plaintiff that it was injuring her residence thereby, defendant nevertheless 'wantonly and recklessly used explosives in such quantities and to such an extent as that the blast or explosion therefrom shook and jarred the plaintiff's house,' etc. A majority of the court are of the opinion that this count sufficiently charges wanton negligence in the conduct of defendant's blasting operations, so as to impart liability within the principles stated in Bessemere C., I. & L. Co. v. Doak, 152 Ala. 166, 177 [44 So. 627, 12 L.R.A. (N.S.) 389]. The phrase 'wantonly and

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