School Dist. No. 162 of Gage County v. Grosshans & Petersen, Inc.

• Decision Date: 04 December 1959
• Docket Number: No. 34600,34600
• Citation: 99 N.W.2d 601,169 Neb. 357
• Court: Nebraska Supreme Court
• Parties: SCHOOL DISTRICT NUMBER 162 OF GAGE COUNTY, Nebraska, et al., Appellees, v. GROSSHANS & PETERSEN, INC., a corporation, Appellant.

Page 601

99 N.W.2d 601

169 Neb. 357

SCHOOL DISTRICT NUMBER 162 OF GAGE COUNTY, Nebraska, et al., Appellees, v. GROSSHANS & PETERSEN, INC., a corporation, Appellant.

No. 34600.

Supreme Court of Nebraska.

Dec. 4, 1959.

Syllabus by the Court

1. Whether a witness' qualification to state his opinion is sufficiently established rests largely in the discretion of the trial court, and its ruling thereon will not ordinarily be disturbed on appeal unless there is a clear showing of abuse.

2. An instruction with reference to the measure of damages is not reversible error where the amount of the judgment is sustained by evidence as to damages to which no objection is made and the defeated party makes no complaint as to the amount of the verdict and judgment.

3. A slight error in an instruction will not cause a reversal of the judgment, where it is manifest the party complaining was not prejudiced thereby.

Sackett, Brewster & Sackett, William B. Rist, Beatrice, Robert F. Galloway, Marysville, Kan., for appellant.

P. M. Everson, Wymore, Halcomb, O'Brien, Knapp & Everson, Kimball, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action for damages to a school building owned by plaintiff district allegedly caused by dynamite explosions in a rock quarry operated by the defendant. Issues were made. Trial to a jury was had. The jury found for the plaintiffs. Judgment was entered on the verdict. Defendant appeals. We affirm the judgment of the trial court.

At the close of all the evidence defendant moved for a directed verdict on the ground that the plaintiffs had failed to prove any causal connection between the operations of the defendant and damages to plaintiffs' property.

By assignment here defendant contends that the failure to sustain the above motion was error. This in turn rests upon the argument that the evidence of plaintiffs' expert witness was erroneously admitted and that, absent that evidence, the required proximate cause resulting in damage was not established.

The evidence is here stated under the established rule that such a motion admits the truth of all competent evidence favorable to the party against whom the motion is directed; that every controverted fact must be resolved in its favor; and that it is entitled to the benefit of every inference that can reasonably be deduced from the evidence. We state the evidence favorable to the plaintiffs.

The school building was built about 1920. It was of brick construction on a concrete foundation. There was no steel reinforcement. Sometime prior to 1954 a settlement crack appeared in the east wall. That was repaired in 1954. There is also evidence of some replastering that was done prior to that time. The building was inspected, repaired, and repainted in 1954.

The quarry operated by defendant was located about one-half mile from plaintiffs' building. The building was in the village of Holmesville.

Beginning about December 23, 1955, and at various times until April 27, 1956, defendant used dynamite to blast rock in the quarry. The blasting was so done as to break the rock into pieces sufficiently small to go through a crusher so that the rock could be used in highway construction. Defendant often prepared as many as 48 holes for one explosion. These were drilled to depths of as much as 20 feet. Dynamite was placed in these holes to within 30 to 36 inches of the top. Dirt was then tamped in the holes to lessen any upward push of the explosion. The dynamite was so wired that it exploded in 'delays' of 25/1000 of a second, and there were from two to four delays in each explosion. Beginning December 23, 1955, and ending April 27, 1956, defendant exploded dynamite 2 days in December, 9 days in January, 10 days in February, 21 days in March, and 11 days in April. On several days there were two and sometimes three and four explosions a day.

Plaintiffs offered evidence of lay witnesses living within a radius of 2 1/2 miles of the schoolhouse, and other witnesses who were close to or in the schoolhouse when blasts occurred. These witnesses described the effects of explosion blasts at the quarry which they observed as 'the house shook'; 'vibration' was felt when a car was driven near the quarry; 'barn vibrated'; the 'house commenced to quiver and the windows rattled'; 'dishes rattled in the cupboard'; an elevator building 'shook,' windows rattled, and 'the bars on my scale * * * rattled'; 'could feel the ground shake'; cans on the shelves of a store 'shook' and the floor 'shook'; china in a cabinet 'shook'; large rocks were blown out and upon land of one of the witnesses; the blast 'shook the earth'; a furnace rattled; in the school building the blast 'shook us'; light fixtures swayed; and there was rattling of the windows and vibration in the schoolhouse.

The above paragraph is not an all-in-clusive statement of the evidence of what lay witness after witness testified as to what they saw and observed.

Defendant does not contend that said vibrations did not follow directly from these explosions. Rather defendant's evidence was to the effect that the vibrations could not have been of sufficient magnitude to have caused the damage about which complaint is made.

During the months of the blasting large cracks appeared in the walls of the schoolhouse where the brick separated, and cracks appeared in the plaster on walls and ceiling and in the concrete tunnel in the basement. Bricks pulled away from joists at the top of the walls. The extent of these cracks need not be recited as the extent of the damage to the building is not an issue here. It is sufficient to point out that they appeared to a large extent in that part of the building that received the first impact of vibrations from the quarry.

Plaintiffs' expert witness investigated the plaintiffs' school building and examined its exterior and interior walls for evidence of structural failure; he examined the attic, the basement tunnel, and the roof, he described the construction; and he described the condition of the walls, ceiling, etc., largely in corroboration of plaintiffs' custodian witness.

Plaintiffs' expert witness was examined and...