Johnson v. City of Asheville

• Decision Date: 23 January 1929
• Docket Number: 563.
• Parties: JOHNSON v. CITY OF ASHEVILLE et al.
• Court: North Carolina Supreme Court

146 S.E. 229

196 N.C. 550

JOHNSON v. CITY OF ASHEVILLE et al.

No. 563.

Supreme Court of North Carolina

January 23, 1929

Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Special Judge.

Action by C. Tennant Johnson against the City of Asheville and others. From the judgment, defendant City appeals. Partial new trial ordered.

City may have submitted relative liability as between it and construction company for negligent blasting by latter's independent contractor.

The evidence tended to show that on or about September 23, 1926 the defendant Allport Construction Company made an offer to the city of Asheville to do the excavation for the new McCormick football stadium at certain unit prices therein specified. Thereafter, on September 27, 1926, the city of Asheville, through its mayor, accepted the offer of Allport Construction Company in the following language: "This is to confirm the contract with you and accept your offer at the above price." Thereafter, Allport Construction Company made an agreement with Perry M. Alexander to do the work called for in the contract. Alexander proceeded with the work, and in the performance thereof heavy blasting became necessary. On or about October 22, 1926, a heavy blast was set off, and plaintiff testified: "As I got to the door the blast went off and knocked the windows out of this bedroom and glass practically all over the room. *** It felt like the house was going to crumble and fall down on me. I think if I could have prayed I would have prayed right then. *** The blast knocked out the windows in the bedroom and did a great deal of damage to the room and the gutters. There were blasts set off after that time. *** The next blast which did real damage was on or about the 25th day of January 1927. The whole heavens there was just as black as could be and there was an awful roar, of course, and when I looked around I saw this condition of my house. It just almost demolished it. It practically tore it all to pieces. At the end of the house here there is a big hole sunk right there in the brick. *** There were big holes in the roof of the house. It had to be practically recovered."

The evidence further tended to show that all estimates were made payable to the Allport Construction Company. The city had an engineer upon the work to see that it was properly done. The football stadium was being constructed for the city of Asheville. There was further evidence from Mr. George Pennell that the defendant Allport, trading as Allport Construction Company, had stated to him: "Mr. Alexander is not a subcontractor *** and he had just been employed by me to do this work at a contract price." There was other evidence to the same effect upon this point.

The following issues were submitted:

"1. Was plaintiff's property damaged by blasting negligently conducted, as alleged in the complaint?

"2. What damage, if any, did the plaintiff sustain because of said blasting, as alleged in the complaint?

"3. Was the said work by its nature inherently dangerous?

"4. Was Perry M. Alexander an independent contractor, as alleged?

"5. Was the defendant Alexander in charge of the work at the time of the injury?

"6. From which of the defendants is the plaintiff entitled to recover the said damages?

"7. Between the defendants Perry M. Alexander and J. Hobart Allport and City of Asheville, is the defendant Perry M. Alexander primarily liable and the other defendants secondarily liable?"

The record shows the following: "During the progress of the trial, it was agreed by all the parties, plaintiff and defendants, that the jury should answer the first issue 'yes,' and the second issue $4200.00, and that the jury need not answer the other issues, but that the Court should hear all the facts and evidence, and answer issues 3 4, 5, 6 and 7, and that the answer so made by the Court, together with the answer to issues 1 and 2,...