Philpot v. Rhinesmith, A--84
| Decision Date | 08 February 1950 |
| Docket Number | No. A--84,A--84 |
| Citation | 71 A.2d 219,6 N.J.Super. 324 |
| Parties | PHILPOT et al. v. RHINESMITH. |
| Court | New Jersey Superior Court — Appellate Division |
Herman D. Edelson, Paterson, argued the cause for the appellants (Samuel Raff, Paterson, on the brief).
Jacob H. Bernstein, Perth Amboy, argued the cause for the respondent (Gerson Isenberg, Butler, attorney).
Before Judges JACOBS, DONGES and BIGELOW.
The opinion of the court was delivered by
JACOBS, S.J.A.D.
This is an appeal from a judgment of dismissal entered in the Passaic County Court at the close of the plaintiffs' case.
Plaintiffs, the owners of a bungalow in Wayne Township, planned to build an addition thereto. It was necessary to blast rock for a cellar and the defendant, a blasting contractor, was engaged for that purpose. The defendant assured plaintiffs that there was no cause to fear that the house would be damaged. By July 19, 1947 the first phase of the defendant's blasting operation was completed. The plaintiffs then caused the resulting loose rocks to be removed and after their removal the house and its walls were 'intact'. About a week later the defendant returned to the premises 'to do the second phase of the operation in order to get down to the proper depth for the cellar'. Plaintiffs were away while the blasting took place but, when they returned, they found their house seriously damaged. When plaintiff Roy Philpot saw him a day or two later, the defendant, in response to an inquiry as to what had happened, said 'We had a little accident' and that 'the man must have drilled too deep and put in too heavy a charge to crack the walls of the house like that.' The defendant promised to 'take care' of the damage but failed to do so. Thereupon plaintiffs instituted their action in the lower Court alleging that, as a result of the defendant's negligent performance of his work, they suffered damage for which they claimed recovery. The testimony of the plaintiffs and the reasonable inferences which may be drawn therefrom in their favor, Beasley v. Hudson Bus Transportation Co., Inc., 5 N.J.Super. 181, 183, 68 A.2d 639 (App.Div.1949) were sufficient to establish the facts hereinbefore set forth; on the defendant's motion at the close of the plaintiffs' case the lower Court dismissed the action on the ground that no negligence had been shown.
We believe that negligence was reasonably inferable from the circumstances and the admissions of the defendant. Cf. Sibley v. City Service Transit Co., 2 N.J. 458, 464, 66 A.2d 864 (Sup.Ct.1949). In any event, under the doctrine of Res ipsa...
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