Thompson v. Green Mountain Power Corp.

• Decision Date: 02 September 1958
• Docket Number: No. 259,259
• Citation: 120 Vt. 478,144 A.2d 786
• Parties: Dean THOMPSON v. GREEN MOUNTAIN POWER CORPORATION.
• Court: Vermont Supreme Court

Page 786

144 A.2d 786

120 Vt. 478

Dean THOMPSON v. GREEN MOUNTAIN POWER CORPORATION.

No. 259.

Supreme Court of Vermont.

Sept. 2, 1958.

John A. Swainbank, St. Johnsbury, for plaintiff.

Arthur L. Graves, St. Johnsbury, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

HOLDEN, Justice.

The defendant Green Mountain Power Corporation appeals a judgment which has imposed liability for the negligent use of explosives. The defendant assigns error to the failure of the trial court to grant its motions for a directed verdict and to set the verdict aside. The defendant's brief confines both motions to the same questions of law.

The defendant exploded dynamite on property adjacent to the plaintiff's home premises where he maintained a flock of three hundred laying hens. Hens are physically vulnerable to damage by fright from sudden and excessive noise. As a result of the noise produced by the explosion, the poultry suffered from shock and fright. Two hens were smothered as the flock huddled in a corner of the hen house. The remainder lost weight, went into premature moult, and daily egg production declined from two hundred fifty to fifty and the plaintiff was forced to sell the hens at a substantial loss. There was a conflict in the evidence concerning the physical results of the fright upon laying hens and their egg production. The point, though referred to in the defendant's brief, is not for consideration. It is sufficient to say there was substantial evidence to support the plaintiff's claim of damage. Modifying evidence to the contrary is excluded in testing the merits of the motion for directed verdict. Griswold v. Metropolitan Life Ins. Co., 107 Vt. 367, 369-370, 180 A. 649.

The accident occurred while the defendant was engaged in the construction of a power transmission line in the town of South Ryegate. The blasting was done to excavate for two pole settings designated as No. 25 and 26. Pole No. 25 was located in clay soil at a distance of approximately 100 feet from the plaintiff's poultry house. Although a blast was exploded at this location, the defendant experienced no great difficulty in accomplishing the required excavation. Pole No. 26 was located in rock ledge at a distance of 257 feet from the shed where the the plaintiff's hens were kept. The nearest point of the plaintiff's dwelling to Pole 26 was 266 feet. From a shed attached to the dwelling the distance to this pole site was 190 feet. The Wells River intervenes the space between the power line on the north and the plaintiff's premises to the south. The plaintiff's home and adjacent buildings are situated on the north side of a highway designated US Route 302. The photographic exhibits received in evidence show the plaintiff's buildings to be in clear view from Pole 26.

The blasting operations were directed by the defendant's foreman who had forty-four years of experience in the use of explosives. On September 30, 1955 the defendant's workmen drilled three holes, two feet apart and six feet in depth in the rock ledge at No. 26. A charge of three sticks of dynamite was placed in each hole. The charge was matted by brush and pine trees.

Before detonating the charge, the defendant's employees made no inquiry at the plaintiff's premises concerning the property that might be located in the buildings. The defendant's foreman testified he 'presumed' there was someone present at the Thompson property at the time of the blasting. The plaintiff's wife was at home at the time, yet no warning was given her of the impending explosion. The defendant's workmen were alerted by three shouts spaced at half minute intervals before each explosion was set off. The charge was fired electrically from a distance of 125 feet from the excavation.

When the first charge was exploded, two witnesses who were in a home about a third of a mile from the Thompson place, were frightened by the explosion and hurried in excitement to the Thompson home to learn what had happened. They found the plaintiff's wife in the dooryard. They heard the hens making considerable racket in the hen house, and could hear them batting their wings against the sides of the building. Mrs. Thompson was not available as a witness, having deceased prior to the time of trial.

While these witnesses were at the plaintiff's home, a lighter charge was fired. Rock debris was hurled into the dooryard and the witnesses took refuge in the house. After a third and similar charge failed to accomplish the required excavation, blasting operations were suspended over the week-end to October 3. During the interim the plaintiff unsuccessfully sought to communicate with the defendant through its local representative. The blasting was completed on October 3.

The defendant's foreman testified that at the time the successive charges were fired, he did not know there were laying hens in the buildings on the plaintiff's property. Nor did he know that poultry could be injuriously affected by fright. He was aware that the explosion of dynamite is capable of producing excessive noise, some concussion and vibration of the ground.

The poultry were housed in a substantial structure that was covered by a steel roof. At the time of the explosion, the windows were open, no glass was broken, nor was there any visible damage to the building, although some hundred pieces of rock debris from the excavation were picked up about the yard.

There was no expert evidence that the charges were negligently loaded or covered. The principle claim of negligence rests on plaintiff's charge that the defendant failed to notify and warn him of the impending explosion that he might protect his property from the damaging effect that ensued. The evidence supports the plaintiff's contention that there were certain protective measures that were available to the plaintiff to safeguard the poultry from harm by the explosion had he received adequate and timely warning.

With special care, the hens could have been removed from the range of damaging sound and other disturbance produced by the explosion. The windows of the shed could have been closed, although the defendant developed the point that this precaution might have produced additional damage from intensified concussion and flying glass. The severity of the fright might have been reduced by feeding at the time of the explosion or by introducing noises familiar to the poultry to counteract the noise of the explosion.

The defendant challenges the plaintiff's right to a recovery on these facts on three basic contentions. First, liability is disclaimed because the defendant need not have anticipated injury to the plaintiff's hens due to fright alone, since that was not a consequence which in the ordinary course of things naturally followed the defendant's acts.

That high explosives have great utility in meeting the construction needs of modern society is not open to question. Modern safety techniques developed in a proper observance of human and legal considerations have reduced the incidence of harmful misadventure to relatively few occasions for legal redress. Yet the law preserves dynamite in the category of highly dangerous agencies and demands of its use the highest degree of care and caution. Tinney v. Crosby, 112 Vt. 95, 104, 22 A.2d 145; Goupiel v. Grand Trunk R. Co., 94 Vt. 337, 342, 111 A. 346.

The doctrine of absolute liability has not been accepted in this jurisdiction. See Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348. Notwithstanding, this Court has judicially recognized that those who deal with a deadly agency should be held accountable to all whose likelihood of injury could reasonably be foreseen, even unto trespassers. Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 422, 139 A. 440, 56 A.L.R. 1011.

Foresight of harm lies at the foundation of negligence. Knowledge of danger on the part of the actor is vital to the creation of the duty to exercise care in any given situation where injury to the person or property of others is at stake. 2 Street, Foundations of Legal Liability, p. 97; 2 Harper & James, The Law of Torts, § 16.5 pp. 907 et seq.; 65 C.J.S. Negligence § 5, pp. 350 et seq.; 38 Am.Jur., Negligence, § 23 p. 665. See also, Pollock, The Law of Torts, 13th Ed. 1929--Inevitable Accident, pp. 140-149. And the opportunity for knowledge, when available by the exercise of reasonable care, is the equivalent of knowledge itself. Green v. Atlanta & Charlotte Air Line R. Co., 131 S.C. 124, 126 S.E. 441, 38 A.L.R. 1448, 1452.

Knowledge essential to the invocation of legal duty, need not be actual; it may be implied, imputed and constructed from the circumstances. Humphrey v. Twin State Gas & Electric Co., supra, 100 Vt. 422, 139 A. 444; Stedman v. O'Neil, 82 Conn. 199, 72 A. 923, 926, 22 L.R.A.,N.S., 1229. Knowledge of the true facts may be essential to careful conduct. And where knowledge is required, voluntary ignorance is culpable and affords no protection from legal liability. Gobrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858, 861.

Blasting is ultrahazardous because it requires the use of high explosives. It is impossible to predict with certainty the effect of its consequences. Restatement, Torts, § 502, Comment c. The defendant, about to release an explosive force, whose pattern of destruction could not be accurately foretold, was under the duty to investigate adjacent property where the force might be spent. A survey of the area within range of the blast presented the dwelling and outbuildings of the plaintiff at a distance of less than a hundred paces from the excavation site. There was ample time for inquiry and investigation for the timing was under the control of the defendant. The explosion itself was not accidental; only the final result was unforeseen. In this situation the range of vision and apprehension to the prudent eye is substantially enlarged from the predicament...