Scott v. Central Commercial Company, 50

Decision Date09 December 1959
Docket NumberNo. 50,Docket 25653.,50
Citation272 F.2d 781
PartiesHarland SCOTT and Ella Scott, Appellants, v. CENTRAL COMMERCIAL COMPANY, Appellees.
CourtU.S. Court of Appeals — Second Circuit

John J. Heckman, Granville, N. Y., George W. Harrington, Associate Counsel, Castleton, Vt., for appellants.

J. Malcolm Williams, Poultney, Vt., Williams & Sullivan, Richard F. Sullivan, Rutland, Vt., of counsel, for appellee.

Before LUMBARD, Chief Judge, and HAND and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment of the District Court for the District of Vermont, Gibson, J., presiding, dismissing the complaint upon the verdict of a jury in an action to recover damages to the plaintiffs' real property, caused by the defendant's blasting on its quarries, which lay at some distance from plaintiffs' land. The complaint alleged that the blasting had been done negligently, and Judge Gibson charged the jury that the defendant's liability depended upon its failure to exercise reasonable care "to prevent injury to adjoining property from vibration or concussion," which were the only injuries involved. At the conclusion of the charge the plaintiffs' attorney, when asked by the judge whether he had any exceptions, answered: "We are entirely satisfied," as did the defendant's attorney also. The jury brought in a verdict for the defendant on which the judgment was entered, as we have said.

Concededly, the claim depends upon the law of New York; and the plaintiffs' position is that under the law of that state, if injury to nearby land results from the concussions of repeated blasts, and not from throwing rocks and the like upon the land, the injured party may recover, regardless of negligence, at least if the defendant was not engaged in making improvements on his own land. Dixon v. New York Trap Rock Corporation, 293 N.Y. 509, 58 N.E.2d 517. To the defendant's argument that the plaintiffs had brought and tried the action upon the theory that their land had been injured by the defendant's negligence, the plaintiffs replied that, when a judgment has resulted in grave injustice an appellate court may intervene, though the question was not raised below. There are indeed occasions when a court will do so. United States v. Trypuc, 2 Cir., 136 F.2d 900; United States v. Haug, 2 Cir., 150 F.2d 911, 915; Dowell, Inc. v. Jowers, 5 Cir., 166 F.2d 214, 221, 2 A.L.R.2d 442. However, it is obvious that such a power...

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4 cases
  • State v. Morrill
    • United States
    • Vermont Supreme Court
    • April 1, 1969
    ...and to add to, or modify its charge. State v. Quesnel, 124 Vt. 491, 495, 207 A.2d 155. Judge Learned Hand, in Scott v. Central Commercial Company, 2 Cir., 272 F.2d 781 (1959), cert. denied 363 U.S. 806, 80 S.Ct. 1241, 4 L.Ed.2d 1149, refused to consider the trial judge's charge to the jury ......
  • Schwartz v. SS NASSAU
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 7, 1965
    ...Stores, Inc. v. Oklahoma Retail Grocers Ass'n, 360 U.S. 334, 342, 79 S.Ct. 1196, 3 L.Ed.2d 1280 n. 7 (1959); Scott v. Central Commercial Co., 272 F.2d 781 (2d Cir. 1959), cert. denied, 363 U.S. 806, 80 S.Ct. 1241, 4 L. Ed.2d 1149 (1960); Patent & Licensing Corp. v. Olsen, 188 F.2d 522, 525 ......
  • LiMandri v. Brasileiro
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1963
    ...to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Scott v. Central Commercial Co., 272 F. 2d 781 (2 Cir. 1959), cert. denied, 363 U.S. 806, 80 S.Ct. 1241, 4 L.Ed.2d 1149 (1960); Alaska Pacific Salmon Co. v. Reynolds Metal Co., 163 ......
  • Quality Molding Co. v. American National Fire Ins. Co., 12659-12668.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 19, 1960
    ...272 F.2d 779 (1959) ... QUALITY MOLDING COMPANY, Plaintiff-Appellant, ... AMERICAN NATIONAL FIRE INSURANCE ... ...

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