Whitney v. Ralph Myers Contracting Corp.

• Decision Date: 14 April 1961
• Docket Number: No. 12053,12053
• Citation: 118 S.E.2d 622,146 W.Va. 130
• Court: West Virginia Supreme Court
• Parties: Robert J. WHITNEY and Elizabeth Whitney v. RALPH MYERS CONTRACTING CORPORATION.

Page 622

118 S.E.2d 622

146 W.Va. 130

Robert J. WHITNEY and Elizabeth Whitney v. RALPH MYERS CONTRACTING CORPORATION.

No. 12053.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1961.

Decided Feb. 28, 1961.

Rehearing Denied April 14, 1961.

Syllabus by the Court.

1. In an action for recovery of damages to property, alleged to have resulted from blasting operations of defendant, to be entitled to recover the plaintiff must establish that the damages were caused by, or were the result of, the blasting. The question of whether the damages were caused by the blasting is for jury determination, where the evidence is materially in conflict.

2. The use of explosives in blasting operations, though necessary and lawfully used by a general contractor in the construction of a public highway, being intrinsically dangerous and extraordinarily hazardous, renders the contractor liable for damages resulting to the property of another from such blasting, without negligence on the part of the contractor.

3. A general contractor in the construction of a public highway is liable for damages resulting to the property of another from blasting operations conducted by him, notwithstanding such damages were due solely to vibrations occasioned by the blasting.

4. The immunity from suit afforded the State of West Virginia by Section 35 of Article VI, of the State Constitution, does not extend to a person who has entered into a contract with the State Road Commission.

5. Though a person in the performance of a contract with a government authority may be immune from liability as to damages done in strict performance of the contract, where such damages are merely incidental or necessary to such performance, such immunity does not extend to circumstances where damages are not the direct and consequential result of or necessary to the performance of the work required to be done by the contract.

Campbell, McNeer, Woods & Bagley, S. S. McNeer, L. E. Woods, Jr., C. F. Bagley, Jr., Huntington, for plaintiff in error.

Beckett & Burford, William A. Beckett, Robert H. Burford, Huntington, for defendants in error.

GIVEN, Judge.

Plaintiffs, Robert J. Whitney and Elizabeth Whitney, instituted an action of trespass on the case in the Circuit Court of Cabell County for recovery of damages to a dwelling owned by them, alleged to have resulted from blasting operations of the defendant, Ralph Myers Contracting Corporation. A jury trial resulted in a verdict for plaintiffs for $1,288.95, and judgment was entered on the verdict.

Defendant, in the performance of a contract with the State Road Commission for the grading of a project in connection with the construction of Interstate Highway No. 64, near Huntington, was required to make a deep cut through an elevation and, in doing so, was required or elected to perform blasting operations through rock. The damages complained of are alleged to have been caused by vibrations resulting from such blasting.

Plaintiffs were the owners of real property on which a dwelling had been erected, situated on the right of way required by the State for the highway. They were permitted, however, and elected to move the dwelling to a new location, a distance of approximately eighteen hundred feet from the nearest point of the blasting operations. The property at the new location was not a part of the property acquired for the right of way for the highway. Plaintiffs employed a contractor by the name of Wolfe to make the excavation for the basement for the house at the new location, to construct the basement walls, and to move the house to and place it on the walls, which he did. The basement walls were constructed of masonry blocks, usually referred to as cinder blocks, and were eight inches wide eight inches high and sixteen inches long. The height of the walls was approximately eighty eight inches. From one side of the house the basement walls were extended approximately twelve feet farther than the reach of the house, for the purpose of supporting a contemplated addition to the house. Through the center of the basement, after the house had been brought to rest on the walls, plaintiffs placed further, perhaps temporary, supports, referred to in the testimony as 'jacks'. The basement floor had not been finished at the time of the damages complained of, and 'backfilling' had not been completed. The contractor Wolfe, experienced in that type of work, and others, testified to the effect that the foundation and the walls, and the materials used, were ample for the type of dwelling placed thereon, and that the construction of the walls was done in the usual manner, by good workmanship.

On the trial before the jury the defendant contended that the basement walls were not properly constructed, that they were not of sufficient strength for the purpose intended, and that certain work performed by plaintiffs in connection with the support of the house was improperly done. We think, however, it is unnecessary to detail the evidence as to such contentions, for the jury finding precludes this Court from disturbing the verdict on such grounds.

The house was moved to the new location about January 15, 1959 and, after plaintiffs had reoccupied the house, cracks began to appear in the basement walls and continued to increase in number and size until about April 10, 1959, when the basement walls, or, at least, the larger part thereof, collapsed, permitting the house to fall. Several witnesses testified to the nature and severity of the vibrations resulting from the blasting operations of defendant, which reached plaintiffs' property and its vicinity, and of complaints made to defendant relating thereto. No witness saw any crack or break in the basement walls appear simultaneous with experiencing any vibration.

Defendant offered testimony tending to establish that the blasting was not the proximate cause of the damages complained of, that the blasting was done according to good engineering and construction practices, and that the blasting was required to be done by the defendant by virtue of a contract 'with the state and federal authorities'.

The first proposition relied on by defendant for reversal of the judgment complained of is to the effect that plaintiffs failed to show any causal connection between the blasting done by defendant and the damages complained of. We think the question was one for jury determination. A plaintiff, of course, must establish by satisfactory proof that the injury of which he complains was caused by, or was the result of, action on the part of the defendant, before recovery is permitted. "Proximate cause' is most often defined as any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred; but it has been recognized that the various definitions and tests of proximate cause are inadequate to afford a definite and invariable rule whereby by a line can be drawn between those causes which the law regards as sufficiently proximate and those which are too remote to be the foundation of an action.' 65 C.J.S. Negligence § 103. See 13 M.J., Negligence, Section 23.

In the instant case, the facts detailed are sufficient to permit a jury to infer that the damages were the direct result of the blasting done by the defendant, by the vibrations through the earth occasioned by such blasting. Plaintiffs were not required to show that the damages to the basement walls were the result of any particular or isolated explosion, but only to establish facts that would fairly raise an inference as to the cause thereof. That repeated vibrations of the earth, at or in the vicinity of plaintiffs' property, occasioned by the blasting operations, occurred during times material, appears to be clearly established by the proof and, we believe, the evidence sufficiently establishes that the damage to the basement walls did not occur because of normal pressures or circumstances. In Scranton v. L. G. De Felice & Son, Inc., 137 Conn. 580, 79 A.2d 600, 601, a case decided on facts very similar to the instant case, involving the question here being considered, the Court said: '* * * The finding that the blast in question was followed immediately by a marked and noticeable shaking of the plaintiff's buildings and that cracks then appeared in the exterior and interior plaster is ample under the circumstances to justify the conclusion that the cracks resulted from the blast.'

The next proposition relied on by defendant for reversal of the judgment complained of relates to the action of the trial court in holding that in the circumstances of the instant case, the plaintiffs were not required to establish negligence on the part of defendant in connection with the blasting operations, the proposition usually being referred to as the absolute liability of the defendant.

The question has not been definitely answered by this Court, though we believe the answer has been clearly indicated. As recently as Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 238, 75 S.E.2d 584, 595, this Court said: '* * * Though there is some conflict in the decisions in different jurisdictions, numerous cases hold that a person who conducts such operations, though not guilty of negligence, is liable for consequential injuries to property or persons which result from concussion or vibration caused by an explosion * * *'.

In Fairfax Inn v. Sunnyhill Mining Co., 97 F.Supp. 991, 993, a case decided by the United States District Court for the Northern District of West Virginia, the Court considered the question here involved and reached the conclusion that '* * * Blasting is necessarily and inherently dangerous and, hence, one who undertakes to blast so near to another's property as to be liable to cause damage must assume the risk for any damage resulting from vibration or concussions, irrespective of negligence.'

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