Johnson v. Kansas City Terminal Railway Company

• Decision Date: 06 July 1914
• Parties: MOLLIE JOHNSON, Respondent, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

170 S.W. 456

182 Mo.App. 349

MOLLIE JOHNSON, Respondent, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

July 6, 1914

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

AFFIRMED.

Judgment affirmed.

Samuel W. Moore, Samuel W. Sawyer and J. R. Bell for appellant.

(1) The court erred in giving to the jury the instruction requested by the plaintiff. Hosher v. Railroad, 60 Mo. 329; Abbott v. Railroad, 83 Mo. 271; Obert v. Dunn et al., 140 Mo. 476; Gerst v. St. Louis, 185 Mo. 191; Salmon v. Kansas City, 241 Mo. 38; Handlan v. McManus, 42 Mo.App. 551; Carpenter v Reliance Realty Co., 103 Mo.App. 491; Hoffman v Walsh, 117 Mo.App. 278; Thurmond v. White Lime Assc., 125 Mo.App. 73. (2) The court erred in making a prejudicial statement in the presence and hearing of the jury to the effect that counsel for defendant in certain important and material cross-examination was making mountains out of mole hills, and in making certain other prejudicial remarks in connection therewith in the presence of the jury, which statement and remarks were then and there excepted to by defendant. Wright v. Richmond, 21 Mo.App. 76; State v. Turner, 125 Mo.App. 21; Rose v. Kansas City, 125 Mo.App. 223; Landers v. Railroad, 134 Mo.App. 80; State v. Hyde, 234 Mo. 200; 1 Thompson Trials, Sec. 219. (3) The court erred in permitting, time and again, the witness Mollie Johnson, over the objection of the defendant, to state her conclusions as to one of the chief issues in the case, for the jury to decide, and thus invade the province of the jury. Brown v. Plank Road Co., 89 Mo. 152; Roscoe v. Metropolitan St. Ry., 202 Mo. 576; Muff v. Railroad, 22 Mo.App. 584; Watkins v. Railroad, 44 Mo.App. 245; Spalding v. Edina, 122 Mo.App. 65; Landers v. Railroad, 134 Mo.App. 80; Miller v. Town of Canton, 112 Mo.App. 322; Baehr v. Casualty & Ins. Co., 133 Mo.App. 541. (4) The amount of the verdict is not based upon any evidence of the amount of damages to which plaintiffs would be entitled under the law, but is based upon speculation and conjecture and is excessive. White v. Stoner, 18 Mo.App. 540; Graves v. Railroad, 69 Mo.App. 574; Wiggins v. Railroad, 119 Mo.App. 492; Faust v. Pope, 132 Mo.App. 287; Realty Company v. Railroad, 154 Mo.App. 366; Steffens v. Fisher, 161 Mo.App. 386.

T. B. Buckner for respondents.

(1) Respondents contend that while the appellants had the legal right to use powder and dynamite in the work of lowering its grades--being done in the heart of a populous city and using a dangerous agency to accomplish its purpose--they are absolutely held for all the damages which flow from the act, whether negligently done or done in the most careful manner. This is the maxim of sic utere tuo ut alienum non laedas. While this is not true in some jurisdictions like New York, it is now the settled law of this State sustained by both reason, justice and authority. In this State it is not even a debatable question. Hoffman v. Walsh, 117 Mo.App. 278; Faust v. Pope, 132 Mo.App. 287; Knight v. Donnelly, 131 Mo.App. 152; Seals v. Whitney, 130 Mo.App. 419; French v. Center Creek Powder Company, 158 S.W. 723; Blackford v. Construction Company, 132 Mo.App. 153; Scalpino v. Smith, 154 Mo.App. 524; Schnetzler v. Excelsior Powder Co., 160 S.W. 282; Salmon v. Kansas City, 241 Mo. 14. (2) Damages will be allowed in this State to either persons or property which result from the use of explosives, although no actual trespass is committed. This is not the law in some States, but it is the settled law in Missouri. Scalpino v. Smith, supra; Blackford v. Construction Co., supra; Schnetzer v. Ex. Powder Co., supra; French v. Center Powder Co., supra.

OPINION

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," 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, Missouri, 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 three hundred dollars."

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--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 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. Cohoes County, 2 N.Y. 159, the court pointed out that that was a case where the explosion in question cast rocks on the neighboring land, thereby effecting a physical invasion or trespass. Inferentially, at least, the opinion approved the doctrine of the Hay case and on careful analysis, the decision that the injury of the plaintiff in the Booth case was damnum absque injuria will be found to rest upon the startling proposition that...