Republic Steel Corporation v. Peoples, 14953.

• Decision Date: 02 December 1954
• Docket Number: No. 14953.,14953.
• Citation: 217 F.2d 236
• Parties: REPUBLIC STEEL CORPORATION v. Jesse E. PEOPLES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

217 F.2d 236 (1954)

REPUBLIC STEEL CORPORATION v. Jesse E. PEOPLES et al.

No. 14953.

United States Court of Appeals, Fifth Circuit.

December 2, 1954.

J. R. Forman, Jr., Greye Tate, Birmingham, Ala., Burr, McKamy, Moore & Tate, Birmingham, Ala., of counsel, for appellant.

W. A. Jenkins, Jr., Walter Fletcher, William C. Barber, Birmingham, Ala., Gillespy & Dominick, Birmingham, Ala., of counsel, for appellee.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

BORAH, Circuit Judge.

These appeals are from judgments for the plaintiffs in each of seven suits brought to recover damages to real estate and for annoyance, inconvenience and mental anguish resulting from the negligence of the defendant in and about the exploding of dynamite and blasting of rock and ore formations in connection with its strip mining operations. The suits were consolidated below and tried together by order of court.

The evidence adduced in substantiation of the claims of the plaintiffs consisted of their own testimony. Each plaintiff identified his dwelling house, described in general terms its structural features, its location with respect to the nearest point of blasting and detailed the injuries and damages which he attributed to defendant's blasting operations. The injuries claimed consisted in the main of plaster cracks, cracks in walls, foundations, chimneys, concrete pavements and the like. Plaintiffs testified that their houses were undamaged before the blasting complained of occurred and that the evidence of damages first appeared following the severe blasting which they heard and felt. In addition to the foregoing, several of the plaintiffs testified that they notified defendant of the damage which was being caused by the blasting but defendant did not promptly do anything about it though it did have its representatives inspect the properties for damage before the present suits were filed. In the meantime, the blasting continued unabated. Finally, there was testimony on the part of plaintiff H. P. Tessier, Sr., that on one occasion during the latter part of July, 1953, some small rocks had been cast upon his house by blasting. This in general was the range of the testimony and plaintiffs rested their case in chief without proof of any specific negligence of the defendant. Defendant then presented evidence to show that its use of explosives in its operations on its own premises is necessary; that its blasting and blasting practices were not only reasonable and in accordance with the customary, usual and generally accepted practices prevailing in the community, but were, in the opinion of its experts and according to the best available technical knowledge and information, such as to be incapable of causing any damage to any of plaintiffs' property.

The court denied defendant's motion for directed verdict at the close of all the evidence, and its motion to set aside the verdict and judgment rendered therein and to render judgment in favor of defendant in accordance with defendant's motion for a directed verdict.

On appeal the defendant assigns as error, the above stated action of the trial court.

The issues thus presented to this court for determination are whether the evidence was sufficient in law to support a verdict, (1) as to those counts in each complaint seeking damages as the proximate result of negligence, (2) as to those counts of each complaint seeking damages as the proximate result of wanton misconduct, (3) as to the one count in each complaint, except that of plaintiff Guy, seeking damages for trespass by reason of rocks, debris and other material being cast upon plaintiffs' property.

Under the law of Alabama which is controlling under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, it is clear that one conducting blasting operations on his own land is liable to an adjoining or neighboring proprietor in trespass for any injury resulting from casting rocks or other debris on such adjoining land, regardless of any prudence or negligence in the mode or circumstances of the blasting. But, as to any injury as may result from one's lawful operations on his own premises, not constituting a legal nuisance there is no liability to an adjoining or neighboring proprietor except for some proximate negligence in the mode or circumstances of such operation. Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67.

In the instant proceeding, there is no substantial evidence that the defendant was negligent in and about its blasting operations or that the blasting operations were the proximate cause of any damages to plaintiffs' premises. Plaintiffs...