Johnson v. Kansas City Terminal Ry. Co.

• Decision Date: 06 July 1914
• Docket Number: No. 11205.,11205.
• Citation: 170 S.W. 456
• Parties: JOHNSON v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Court of Appeals

170 S.W. 456

JOHNSON v. KANSAS CITY TERMINAL RY. CO.

No. 11205.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

Rehearing and Motion to Transfer to Supreme Court Denied October 5, 1914.

EXPLOSIVES (§ 12) — LIABILITY FOR DAMAGES — WANT OF NEGLIGENCE.

Where residence property in the vicinity of a railroad track was injured from being shaken by blasting done by the railroad company, the company was liable, though the blasting was necessary to needed improvements and was done without negligence.

Appeal from Circuit Court, Jackson County; Hon. D. E. Bird, Judge.

Action by Mollie Johnson against the Kansas City Terminal Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

Samuel W. Moore, Samuel W. Sawyer, and J. R. Bell, all of Kansas City, for appellant. T. B. Buckner, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued in a justice court to recover damages to her house caused by the blasting of rock by defendant in deepening a cut for its railroad. The statement alleged:

"That in making said cut said defendant had to cut through an enormous ledge of rock; that during the year 1912 and since the said defendant so carelessly and negligently performed said work that it shot off numerous blasts of powder and dynamite, which said blasts shook the entire neighborhood for blocks around * * * and shook the said plaintiff's house and damaged the same. * * * That all said damages were caused by the negligence of defendant as aforesaid, and by reason of the premises plaintiff has been damaged in the sum of $300.00," etc.

Plaintiff recovered judgment in the circuit court for $300, and defendant appealed.

The home of plaintiff is in a well-settled residence portion of Kansas City, about 500 feet south of defendant's railroad. In lowering the tracks defendant had to deepen a cut through hard rock, and resorted to extensive blasting with dynamite. From the evidence of plaintiff it appears that some of the explosions were much greater than others, and that the vibrations of the earth produced by them greatly damaged her house and endangered the safety of its occupants. The evidence of defendant tends to show that the explosions were not unusual, were necessary to the proper performance of the work, and that defendant acted with reasonable care both in loading and firing the shots. The court overruled defendant's demurrer to the evidence, and at the request of plaintiff instructed the jury:

"That if they believe from the evidence in the case the plaintiff was the owner of a certain house on Highland avenue in Kansas City, Mo., and that during the year 1912, and since the defendant was engaged in building a railroad in the immediate vicinity of her said property, and that in building said railroad it shot off numerous blasts of powder and dynamite which shook and damaged her said house, if it did so shake and damage the same, then the jury will allow her such damages as they shall believe from the evidence was directly caused by said blasts of powder and dynamite, not to exceed the sum of $300."

And the court refused to instruct the jury that defendant "had the right to blast upon its own property in adapting it to the purpose for which it was intended to be used, and if the defendant exercised due care in conducting the blasting, it is not liable to the plaintiff for any damage or injury which might have resulted to the plaintiff's property because of such blasting."

Defendant argues that the demurrer to the evidence should have been sustained on the ground that no negligence in loading or firing the blasts is shown, and that the court erred in its rulings on the instructions for the reason that defendant was doing a lawful work in a proper manner on its own property and cannot be held liable for consequential injuries to the property of adjacent proprietors.

The pivotal question for decision is whether a railroad company must answer in damages for injuries caused to neighboring property by necessary blasting on its premises, carefully executed, or may be held liable only in cases where negligence is pleaded and proved. The work of blasting rock, being absolutely necessary to the construction of many improvements, both of a public and a private character, cannot be regarded under all circumstances as a nuisance, per se, and condemned as being negligent as a matter of law. It is a lawful work which either a public or private proprietor may have done upon his land; his obligation to persons on his land being merely to exercise reasonable care in the performance of such dangerous but useful and lawful work. There are many authorities which go further and hold that his duty towards the owners or occupants of property in the vicinage is no greater.

In Booth v. Railroad, 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552, a case similar to the one in hand, the court held that, no negligence being pleaded or proved, the adjacent proprietor whose house was injured solely by the vibratory forces of the blasting had no cause of action. The court observed:

"To exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a compromise between conflicting rights, but an extinguishment of the right of the one for the benefit of the other. This sacrifice, we think, the law does not exact. Public policy is promoted by the building up of towns and cities and the improvement of property. Any unnecessary restraint on freedom of action of a property owner hinders this. The law is interested, also, in the preservation of property and property rights from injury. Will it in this case protect the plaintiff's house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual, and generally harmless? We think not."

It is interesting to note that in distinguishing the case of Hay v....