Mahoney v. Dankwart

• Citation: 79 N.W. 134,108 Iowa 321
• Parties: MAHONEY v. DANKWART.
• Decision Date: 12 May 1899
• Court: Iowa Supreme Court

108 Iowa 321

79 N.W. 134

MAHONEY

v.DANKWART.

Supreme Court of Iowa.

May 12, 1899.

Appeal from district court, Des Moines county; James D. Smythe, Judge.

Action to recover damages for personal injuries. There was a trial to jury. Verdict and judgment for plaintiff. Defendant appeals. Reversed.C. L. Poor and La Monte Cowles, for appellant.

Hedge & Blythe and Charles Willner, for appellee.

WATERMAN, J.

Plaintiff, with her parents, occupied a dwelling which stood close to the line of a vacant lot adjoining, owned by defendant. Underlying both of these lots was a ledge of limestone, and defendant attempted to remove some of the stone from his lot by blasting. The petition states the cause of action as follows: “That defendant continued this blasting for many days during September, 1895, without warning to plaintiff or her family as each blast was fired, and with careless, wicked, and malicious disregard for the peace and safety of plaintiff, and in a reckless, negligent, and malicious way caused loose fragments of rock to be thrown upon plaintiff's home and premises, and thus put her in constant fear and frequent actual danger of her life and limb. * * * That particularly on or about September 25, 1895, the defendant, in the course of said work above named, permitted a blast to be fired, which shook the foundation of plaintiff's dwelling, threw fragments of earth and rock upon the house and grounds of plaintiff, and cast plaintiff into extreme fright and nervous disorder of so radical a character that it has developed into a permanent disease, which will inevitably shorten her life,” etc. The answer is a general denial. The court submitted the case upon the theory that defendant had a right to do the blasting. It took from the jury the allegation of malice, and instructed that the charge to be considered was whether defendant was negligent. Complaint is made by appellant of this action of the court in submitting the issue of negligence. It is thought that, if defendant was not guilty of the willful wrongs complained of, he should not be held under the petition upon the other ground. The evidence received was all of such a character as would have been admissible under a charge of negligence alone. We do not find that the point now made was presented to the trial court. At the close of the testimony, appellant's counsel moved the court to direct a verdict in his favor, based upon several grounds, but none of these covered the point we are now considering. Neither was it presented in any of the instructions requested by defendant, nor made one of the grounds for the new trial which was asked.

2. One defense interposed was that the work by which plaintiff claimed to be injured was not done by defendant, but by one Magee, an independent contractor, for whose acts defendant was in no way responsible. The trial court instructed on this theory, and it must be taken as the law of the case. Roberts v. Abstract Co., 63 Iowa, 76, 18 N. W. 702. The jury was told that the undisputed evidence established that defendant had a written contract with Magee, by the terms of which the latter was to do the blasting; and the only matter submitted in this connection was whether the work complained of was done under this contract. The jury must have found that it was not, and in this, we think, there was error. Several witnesses testified that Magee had charge of the work after the 7th day of September, and prior to this time it is not claimed that plaintiff suffered any harm from the work. On plaintiff's part the showing is wholly circumstantial, and the circumstances are not inconsistent with defendant's claim. The men employed in the blasting operations had been previously in defendant's service. Defendant was about the work occasionally, but after the 7th of September it does not appear that he assumed or exercised any control over what was being done. This is insufficient to create a conflict of evidence. Sullivan v. Railroad Co., 58 Iowa, 602, 12 N. W. 621. All of the circumstances upon which plaintiff relies to meet this issue may be readily reconciled with the fact that the work, after the 7th day of September, was done by an independent contractor. See Wheelan v. Railway Co., 85 Iowa, 167, 52 N. W. 119. When a fact is not incredible, and is testified to by a witness who is unimpeached and uncontradicted, the jury has no right to arbitrarily disregard the testimony of such witnesses. Lomer v. Meeker, 25 N. Y. 361;Elwood v. Telegraph Co., 45 N. Y. 549.

3. An ordinance of the city of Burlington was introduced in evidence over defendant's objection. It provided that any one blasting within the city limits should cover the orifice in which the explosive was placed with good, sound timber, so as to prevent fragments of rock from being thrown into the air; and that any failure in this regard was a misdemeanor. The objection to this evidence is that there is no claim that the damage was caused by a failure to cover the blasts, but, on the contrary, the sole ground of complaint is that the blasts were fired without warning to plaintiff. The...