Kimberly Et Ux v. Howland

• Decision Date: 18 December 1906
• Citation: 143 N.C. 398,55 S.E. 778
• Court: North Carolina Supreme Court
• Parties: KIMBERLY et ux. v. HOWLAND.

55 S.E. 778

143 N.C. 398

KIMBERLY et ux.

v.HOWLAND.

Supreme Court of North Carolina.

Dec. 18, 1906.

1. Negligence—Submission of Issues.

In an action for injury from negligence, the case is properly submitted by the issues: Was defendant negligent as alleged? was plaintiff injured thereby? and what, if any, damages is plaintiff entitled to recover?

2. Explosives — Injuries from Blasting — Evidence.

Evidence that defendant was blasting with dynamite 175 yards from plaintiff's house and close to otter houses; that defendant's foreman was not an expert blaster, and was absent part of the time when the blasting was going on, that his assistants had but little experience, that the blasts were fired off without being properly smothered, that smothering was a safe method usually employed in such operations, and that, had it been properly done, a rock would not have been thrown through plaintiffs' house by one of the blasts, is sufficient evidence of negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Explosives, § 9.]

3. Same — Foreseeing Probable Consequences.

One who is blasting with dynamite in the immediate neighborhood of dwellings should foresee the danger to persons in a house 175 yards distant from blasting without properly smothering the blast, so as to be liable for injury to them therefor, though he cannot foresee the exact form of the injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Explosives, § 9.]

4. Damages—Liability for Wrecked Nervous System.

Where fright from the negligent throwing of a rock by a blast through a house nearly causes the miscarriage of a woman and wrecks her nervous system, recovery may be had there-tot.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 100.]

5. Husband and Wife—Injury to Wife— Right of Husband to Recover.

Where a wife is injured, the husband may recover for loss of her services, society, aid, and comfort, including a fair compensation for her future diminished capacity.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 768.]

Appeal from Superior Court, Buncombe County; W. R. Allen, Judge.

Action by T. M. Kimberly and wife against R. L. Howiand. Judgment for plaintiffs. Defendant appeals. Affirmed.

The plaintiffs brought two distinct actions for an injury to the feme plaintiff by reason of the negligence of the defendant in conducting certain blasting operations. The husband sued for the loss of his wife's services. The two actions were consolidated and tried together upon the following Issues: (1) Was the defendant negligent as alleged? Ans. Yes. (2) If so, was the plaintiff Janie Kimberly injured thereby? Ans. Yes. (3) What damage, if any, is plaintiff Janie Kimberly entitled to recover? Ans. $3,500. (4) What damage, if any, is plaintiff T. M. Kimberly entitled to recover? Ans. $700. From the judgment rendered, defendant appealed.

Merrimon & Merrimon, for appellant.

Thomas A. Jones, for appellees.

BROWN, J. The defendant excepted to the issues submitted by the court, and tendered the following: (1) Were the Injuries alleged in the complaint the immediate, natural, and necessary consequences of the alleged blasting? (2) Were the alleged injuries to the plaintiff such as might naturally and probably occur from the alleged negligence, and were they such as should have been in contemplation of the defendant with reasonable certainty? (3) Was the alleged physical injury the natural and proximate result of the alleged fright? The issues submitted by the court presented every phase of the case and are such as arise upon the pleadings, and are approved by precedent as appropriate in such cases. The defendant was given the opportunity to present every defense he had and every proposition of law and fact embraced In the issues tendered by him. Not only was he given a fair opportunity to present his view of the law and facts, but the record shows that he did so present them. The Issues submitted are also a sufficient basis for the judgment rendered. Wright v. Cotten, 140 N. C. 1, 52 S. E. 141; Wilson v. Cotton Mills, 140 N. C. 52, 52 S. E. 250.

The chief contention made by the learned counsel for the defendant in his argument is that in no view of the evidence can either plaintiff recover, and therefore the motion to nonsuit should have been sustained. As the right to recover anything on the part of the husband is dependent upon the liability of the defendant to the wife, we will consider her case first

It Is contended: (1) That the evidence dis closes no negligent act. (2) That the defendant's agents could not have reasonably foreseen the consequences of their acts. (3) That the injury complained of by the wife was the result of fright only, for which no recovery can be had. The plaintiff offered evidence tending to prove that defendant was blasting rock with dynamite on the outskirts of the city of Asheville about 100 yards from Charlotte street and 175 yards from plaintiffs' residence, and in close proximity to other houses. A rock from one of the blasts, weighing about 20 pounds, crashed through a portion of plaintiffs' residence. It was further in evidence that defendant's foreman was not an expert blaster and that a part of the time when the blasting was going on he was absent, and that his assistants had but little experience. It was in evidence that the blasts were fired off without being properly "smothered, " and that "smothering" is a safe method usually employed in such operations, and that, had it been properly done on this occasion, the injury to plaintiffs' residence could not well have resulted. We think the evidence of negligence amply sufficient to have been submitted to the jury. Blackwell v. Railroad, 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 736. We think, furthermore, that a man of ordinary prudence should have foreseen the probable consequences of blasting with dynamite in such a neighborhood without properly smothering the blast Persons using such an inflammable and powerful instrumentality as dynamite are charged with knowledge of its probable consequences whichthey could by reasonable diligence have acquired. The defendant knew he was blasting in a populous neighborhood, and that plaintiffs' dwelling was near by. If the evidence offered by plaintiffs is to be believed, the workmen were unskillful and the blasts deficiently smothered so as to fail to properly confine their effect. It is true, defendant did not know, at the time he fired the blast, that the feme plaintiff was lying in bed in her home in a pregnant condition, but he or his agents knew it was a dwelling house and that in well regulated families such conditions occasionally exist. While the defendant could not foresee the exact consequences of his act, he ought, in the exercise of ordinary care, to have known that he was subjecting plaintiff and his family to danger and to have taken proper precautions to guard against it. Gates v. Latta, 117 N. C. 189, 23 S. E. 173, 53 Am. St. Rep. 584; Watson on Damages, § 4; 19 Cyc. 7, and cases cited; Blackwell v. Railroad, supra. The authorities seem to agree that, if the tort is willful and not merely negligent, the wrongdoer is liable for such physical injuries as may proximately...