Thigpen v. Skousen & Hise, 6390

• Decision Date: 09 July 1958
• Docket Number: No. 6390,6390
• Citation: 327 P.2d 802,64 N.M. 290,1958 NMSC 84
• Parties: W. W. THIGPEN, Plaintiff-Appellee, v. SKOUSEN & HISE, a co-partnership composed of W. J. Skousen and E. R. Hise, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 802

327 P.2d 802

64 N.M. 290

W. W. THIGPEN, Plaintiff-Appellee, v. SKOUSEN & HISE, a co-partnership composed of W. J. Skousen and E. R. Hise, Defendants-Appellants.

No. 6390.

Supreme Court of New Mexico.

July 9, 1958.

Modrall, Seymour, Sperling, Roehl & Harris, Botts, Botts & Mauney, Albuquerque, for appellants.

Chavez, Cowper & Martinez, Belen, for appellee.

SADLER, Justice.

We are called upon to decide the liability of a highway contractor conducting blasting operations with dynamite in the vicinity of a certain building and residence property of plaintiff in the town of Grants in Valencia County, New Mexico, in damages resulting both from rock, dirt and debris cast upon the buildings as a result of the detonations and, as well, from the concussion and vibrations suffered by the buildings as a result of the explosions.

The cause was tried by a jury in Valencia County on an amended complaint and answer. The plaintiff (appellee here) prayed judgment in the sum of $6,600 as damages for rocks and other debris thrown onto and against the buildings in his first cause of action. In his second cause of action, he asked damages in the sum of $8,000 for damages to the foundation, walls and structure of said buildings from the concussion and vibrations caused by the explosions.

Following trial the jury returned into court verdicts in favor of plaintiff for $1,165.75 on the first cause of action and $4,000 on the second cause of action. Accordingly, judgment was entered for plaintiff and against the defendants in the sum of $5,165.75 for the revision and correction of which the defendants have proseucted this appeal. Points I and II may very well be treated together since each relates to claimed error in the giving of certain instructions, Nos. 6 and 7. These instructions read, as follows:

'No. 6. It is the uncontradicted evidence in this case that as a direct and proximate result of the blasting activities on the part of Defendant fragments and debris were thrown upon and against the building owned by plaintiff, thereby causing damage to the building and the contents. You will therefore find the issues in favor of the Plaintiff and against the Defendant with respect to the damage caused by such fragments and debris and assess damages in favor of the Plaintiff to the extent of the actual damage suffered by him as a result of such fragments and debris striking his building or its contents.

'No. 7. If you find from a preponderance of the evidence that the blasting activities of the Defendant caused shock waves which passed through or under the Plaintiff's building, and if you further find that such shock waves either did direct damage to the building, or that they altered the structure of the underlying subsoil so that the building settled with resulting damage, or that damage resulted to the building from a combination of such causes, then you will find the issues in favor of the Plaintiff and against the Defendant with respect to Plaintiff's claim of damage to his building, and you will assess damages in favor of the Plaintiff to the extent of the actual damage done to his building as a result of such shock waves.'

It will be observed from a reading of these instructions that, in effect, the defendants are to be held liable to plaintiff on each cause of action within the amount claimed, if the jury find the damage to his buildings was a direct result of the blasting operations of the defendants. The defendants through their counsel requested the court to instruct the jury, as follows 'No. 1. You are instructed that in cases such as this involving blasting, wherein a dangerous substance is involved, the ordinary law of negligence is applicable to any injury or damage which is incurred and which is proximately caused by the acts of the person who uses the explosive charge. In deciding the issues of this case, you will apply the principles of negligence which the Court shall hereafter give you.

'No. 2. You are instructed that in cases of this kind involving the use of explosives and blasting, if the damage is caused by the casting of debris or material from the blast upon the premises of another such as the plaintiff in this case, the Defendant is liable without regard to his negligence, for all damages and injuries which are proximately caused by the explosive charge. However, as to those damages which are the result of a concussion causing great disturbance, jarring and vibration of the earth or air, in order for the Plaintiff to recover, he must show to your satisfaction by a preponderance of the evidence that the blasting work was performed in a negligent manner and that the negligence was the proximate cause of the damage.'

Thus it is that the court was asked to instruct the jury according to the plaintiff's theory of liability. It is equally obvious that as to each cause of action the jury was told the defendants were liable to plaintiff, irrespective of negligence, if the plaintiff's damage resulted proximately from the defendant's blasting operations, leaving the jury only the question of damages to determine. In other words, the court treated defendants as subject to strict liability if the damages resulted from their blasting. The plaintiff is supported in the position he takes by the great weight of authority. In 22 Am.Jur., 179-180, Secs. 53 and 54, the text states:

'Sec. 53. Trespass--Rocks and Debris.--The decided weight of authority supports the view that where one explodes blasts on his own land and thereby throws rock, earth, or debris on the premises of his neighbor, he commits a trespass and is answerable for the damage caused, irrespective of whether the blasting is negligently done. This rule is not restricted to liability for injury to the land or improvements of an adjoining owner. Since the safety of persons is more sacred than the safety of property, the liability extends to injuries inflicted upon persons lawfully upon premises in the vicinity or upon travelers upon a public highway. Hence, one who explodes a blast upon his own land and thereby causes a piece of the blasted substance to fall upon a person lawfully traveling in a public highway is liable as a trespasser for the injury thus inflicted, although the blast is fired for a lawful purpose and without negligence or want of skill. Where, by law or contract, the person doing the blasting has acquired an easement as against the plaintiff's premises which expressly or impliedly authorized the operation of blasting, either directly or as a reasonably necessary incident to some other lawful purpose, liability arises only as the result of some proximate negligence.

'Sec. 54. Concussion or Vibration.--There is a conflict of authority as to whether one who, by blasting with powerful explosives, produces severe concussions or vibrations in surrounding earth and air and so materially damages buildings belonging to others is liable, irrespective of negligence on his part. According to one theory, since recovery is permitted for damage done by stones or dirt thrown upon one's premises by the force of an explosion upon adjoining premises, there is no valid reason why recovery should not be permitted for damage resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much a physical invasion of the property in one case as there is in the other; and the fact that the explosion causes stones or other debris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth and air, is held to be immaterial. The contrary rule which prevails in some jurisdictions is not based solely on the ground that there is in such case no technical trespass and that the injuries are consequential. Decisions adopting this rule are founded on the views of some courts as to the requirements of public policy. According to this rule, if one in blasting upon his own lands invades the premises of his neighbor, by throwing stones and debris thereon, he is liable for the resulting injury; but for any other injury, such as may result from the mere concussion of the atmosphere, sound, or otherwise, there is no liability, unless it is shown that the work was done negligently, and that the injury was the result of negligence, and not the result of blasting according to the usual methods and with reasonable care. * * *.'

The doctrine stems from an early English case, Rylands v. Fletcher, L.R. 3 H.L. 330, frequently given as the case launching the old doctrine, sic utere tuo ut alienum non laedas. Restatement of the Law of Torts, Secs. 519 and 520, deals with ultrahazardous activities, of which blasting is one, as follows:

'Sec. 519. Except as stated in Secs. 521-4 (not here pertinent) one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.

'Sec. 520. An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of utmost care, and

'(b) is not a matter of common usage

'(c) * * * Blasting is ultrahazardous because high explosives are used and it is impossible to predict with certainty the extent or severity of its consequences.'

There is a well recognized distinction in some of the explosion cases between damage from rocks and debris thrown on a building, in which recovery is allowed, irrespective of negligence, and damage caused by concussion or shock waves, as to which recovery must rest upon fault. Touching this distinction, Prosser on Torts makes some rather caustic remarks while discussing it. Indeed, a very illuminating treatment of the whole...