Marlowe Const. Co. v. Jacobs

• Decision Date: 24 May 1957
• Citation: 302 S.W.2d 612
• Parties: MARLOWE CONSTRUCTION COMPANY, Inc., Appellants, v. Carroll W. JACOBS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 612

302 S.W.2d 612

MARLOWE CONSTRUCTION COMPANY, Inc., Appellants, v. Carroll W. JACOBS et al., Appellees.

Court of Appeals of Kentucky.

May 24, 1957.

Pierce Lively, Danville, for appellant.

James F. Clay, Danville, for appellees.

CLAY, Commissioner.

Plaintiff appellee recovered $1,802.10 damages for injury to real property caused by concussion from the allegedly negligent blasting operations of the defendant appellant. On this appeal defendant urges it was entitled to a directed verdict and that two items of damages were improperly allowed.

Plaintiff owned a brick house on the Lancaster Road near Danville. This highway was being reconstructed by defendant, which necessitated blasting operations in making a cut. The house was located 1,200 feet from the scene of the blasting. Plaintiff proved as a result thereof the walls and the plaster in his house were cracked, his fences were damaged, and one of his ponds went dry. Plaintiff introduced an expert witness who undertook to testify that the damage sustained on plaintiff's property indicated that more dynamite than necessary was used in the blasting operation.

The trial court excluded the testimony of this expert, but in doing so stated that the plaintiff had made a sufficient showing to go to the jury. After defendant's motion for a directed verdict was overruled, it introduced evidence of the method used in blasting, and in rebuttal the plaintiff reintroduced the expert. His opinion at that time, based upon the proven facts with regard to the actual blasting operation, was that it was improperly done.

Defendant's contention is that at the close of plaintiff's case there was no substantial evidence of negligence and that in effect the plaintiff proved his case in chief on rebuttal. Plaintiff's argument, in which we find merit, is that the order of proof was a matter within the discretion of the trial court, and that defendant can show no real prejudice because of the manner in which the case was tried. CR 43.02(3) specifically authorizes the trial court to regulate the order of proof, and subsection (4) of this Rule permits the court to allow evidence in chief at the rebuttal stage of the proceedings. See Wigmore on Evidence, 3d Ed., Vol. 4, Section 1869, page 501, and 53 Am.Jur., Trial, Section 116.

However, disregarding the procedural aspects of the trial, we are of the opinion the court properly denied defendant's motion for a directed verdict at the close of the plaintiff's evidence in chief, on the ground the plaintiff had made a prima facie case.

Admittedly it has long been the rule in Kentucky that where damage is caused to another's property by concussion or vibration as the result of blasting, the plaintiff may recover damages only upon a showing of negligence on the part of the defendant in the performance of its work. Campbell v. Adams, 228 Ky. 156, 14 S.W.2d 418; Williams v. Codell Construction Co., 253 Ky. 166, 69 S.W.2d 20, 92 A.L.R. 737. No such burden is placed upon the plaintiff when this extrahazardous activity damages his property by casting material objects thereon. Langhorne v. Turman, 141 Ky. 809, 133 S.W. 1008, 34 L.R.A., N.S., 211. In Randall v. Shelton, Ky., 293 S.W.2d 559, we reexamined a number of our cases in considering the question of trespass and negligence when a person is injured on his own land by the acts of another. We therein observed that in some of our cases where proof of negligence was required, the result reached could be justified on the theory of res ipsa loquitur.

In the recent case of Aldridge-Poage, Inc., v. Parks, Ky., 297 S.W.2d 632, we expressed serious doubt concerning the soundness of our rule which requires the plaintiff to prove negligence when his property is damaged by one engaged in the extra-hazardous activity of blasting.

It is the opinion of the court that even though our present rule requires negligence to be proven in a case such as the one we have before us, the plaintiff's proof of defendant's acts and the nature of the damage caused may raise an inference of negligence...