Schamahorn v. Gehlhausen

• Decision Date: 25 October 1928
• Docket Number: No. 13115.,13115.
• Citation: 88 Ind.App. 93,163 N.E. 289
• Parties: SCHAMAHORN et al. v. GEHLHAUSEN.
• Court: Indiana Appellate Court

88 Ind.App. 93

163 N.E. 289

SCHAMAHORN et al.

v.GEHLHAUSEN.

No. 13115.

Appellate Court of Indiana, in Banc.

Oct. 25, 1928.

Appeal from Dubois Circuit Court; Bomor Traylor, Special Judge.

Action by Jacob Gehlhausen against Eugene Schamahorn and another. Judgment for plaintiff, and defendants appeal. Affirmed.

W. C. Mason, of Rockport, and R. W. Armstrong, of Evansville, for appellants.

W. E. Cox and H. M. Kean, both of Jasper, for appellee.

NICHOLS, C. J.

Action by appellee against appellants for damages to real estate. The claim for appellee's damage is predicated upon an injury to real estate situated in Perry county, Ind. Appellee filed a first, second, third, and fourth paragraph of complaint, but before the beginning of the trial he dismissed the amended first paragraph, thus leaving in the record the amended second, third, and fourth paragraphs of complaint. The complaint avers, in substance, that appellants were engaged in constructing a state highway, in Perry county, Ind., by and in front of the home of appellee, who is a farmer, and whose farmhouse was situated about 180 yards from such highway; that appellants, while blasting rock along said public highway, caused an excessive amount of dynamite and other explosives to be placed in holes, and the blast was so powerful that large rocks were thrown upon and against his house, breaking and tearing holes in the roof, that his house was lifted, as result of said explosion, from its foundation, and that, when it settled or dropped down upon its foundation, it was out of line therewith; that it was wrenched and twisted so much that its doors would not open or close; that the window lights were broken, and the sashes and casing of said windows would not fit their place in said building; that all the plastering and wall paper was torn from the walls of said building; that his cellar underneath the house was damaged and caused to leak water; that his porches were torn loose from the walls; that his house was completely damaged and destroyed-all to his damage in the sum of $3,500.

There was answer in general denial, and the cause was tried by a jury, which returned a verdict for $950, on which judgment was rendered. The error assigned in this court is the action of the court in overruling appellants' motion for a new trial, under which appellant undertakes to present the insufficiency of the evidence and error in certain instructions.

[1] There was ample evidence from which the jury...