Wendt v. Yant Construction Company

• Decision Date: 20 July 1933
• Docket Number: 28574
• Parties: AUGUST WENDT, APPELLEE, v. YANT CONSTRUCTION COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

249 N.W. 599

125 Neb. 277

AUGUST WENDT, APPELLEE, v. YANT CONSTRUCTION COMPANY ET AL., APPELLANTS

No. 28574

Supreme Court of Nebraska

July 20, 1933

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. One who questions jurisdiction by special appearance should specifically point out the defect which it is claimed prevents the court from acquiring jurisdiction.

2. Owner of dwelling held entitled to damages arising from blasting of tree 135 feet distant and which created a sudden vacuum resulting in concussion and vibration.

3. Measure of damages for injuring a building from blasting is the cost of restoring it to its former condition.

Appeal from District Court, Cass County; Begley, Judge.

Action by August Wendt against the Yant Construction Company and another. From an adverse ruling on a motion for new trial defendants appeal.

Affirmed.

Crofoot, Fraser, Connolly & Stryker and James T. English, for appellants.

D. O. Dwyer and W. L. Dwyer, contra.

Heard before GOSS, C. J., GOOD, EBERLY and PAINE, JJ., and LANDIS and MEYER, District Judges.

OPINION

LANDIS, District Judge.

Plaintiff below, appellee here, instituted this action to recover damages to his house sustained through negligence in the blasting by dynamite of a tree on the highway, which defendant Yant Construction Company was improving under a road construction contract, having in its employ the defendant John Greer. Verdict was returned in favor of the plaintiff against the defendants, judgment entered thereon, and from an adverse ruling on the motion for new trial defendants appeal.

The first assignment of error is directed to the overruling of the special appearance of the defendant Yant Construction Company, which is as follows:

"Comes now the defendant Yant Construction Company, a corporation, and appears specially herein, for the purpose of objecting to the jurisdiction of the court, and for no other purpose."

No defect or reason why the court did not have jurisdiction is set out. If any issue of jurisdiction was tried thereunder the evidence is not before us in a bill of exceptions. One who questions jurisdiction by a special appearance should specifically point out the defect which it is claimed prevents the court from acquiring jurisdiction. As the record presents no jurisdictional defect upon which the trial court ruled, there is no such question for this court to review. Freeman v. Burks, 16 Neb. 328, 20 N.W. 207; Brown v. Goodyear, 29 Neb. 376, 45 N.W. 618; Bankers' Surety Co. v. Town of Holly, 219 F. 96.

Assignments of error two to six, inclusive, are damages allowed excessive, verdict contrary to the evidence and law, not sustained by sufficient evidence, and errors of law occurring at the trial.

The record discloses that appellants were engaged in grading a highway adjacent to land owned by appellee, upon which was a modern dwelling-house of substantial construction. Appellant John Greer was the employee of the Yant Construction Company and in active charge of the construction work. There was a large tree on the highway about 135 feet from the appellee's dwelling-house, which appellants removed by dynamite. As a result of the concussion or vibration caused by the blasting, appellee's dwelling-house was damaged. The logical analysis of this case comprehends a right to be protected against the particular hazard encountered by some rule of law which appellants' conduct violated thereby causing damages to the appellee. It must be conceded that appellee had a right to the enjoyment of his dwelling-house, which should be protected. The hazard encountered arose from the blasting of a tree 135 feet away which created a sudden vacuum resulting in concussion and vibration.

Appellants contend that appellee is not protected against the hazard because of the rule of law that, where a highway contractor blasts on the roadway under construction in order to adapt it to proper and lawful use, the mode adopted being the usual and practical one, and the work being prosecuted with due care, without negligence, injury resulting to adjacent premises is not actionable. 11 R. C. L. 674, sec. 28.

Appellee claims protection under the rule that one who uses high explosives in excavating so near property of another that the natural and probable result of an explosion will be injury to such property is liable for injuries caused, even by vibration and concussion of air, however high degree of care he may have exercised in their use. 25 C. J. 192.

Absolute liability without regard to fault seems to be generally imposed by the courts wherever there has been an actual invasion of property by rocks or debris from blasting. Mulchanock v. Whitehall Cement Mfg. Co., 253 Pa. 262, 98 A. 554, L. R. A. 1917A, 1015; Patrick v. Smith, 75 Wash. 407, 48 L. R. A. n. s. 740, 134 P. 1076.

Some courts distinguish between liability for a common-law trespass occasioned by blasting which projects rocks or debris upon the property of another, and liability for damages arising from concussion, and deny liability for the latter where the blasting itself was conducted at a lawful time and place with due care. Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 12 L. R. A. n. s. 389, 44 So 627; Gibson v. Womack, 218 Ky. 626, 51 A. L. R. 773, 291 S.W. 1021. This distinction is based on the historical differences between the common-law actions of trespass and case. There is no practical difference between liability occasioned by blasting which projects rocks on another's property or by creating a sudden vacuum and resultant...