Opinion
No. 4360.
Argued December 7, 1954.
Decided December 31, 1954.
Where damage to the plaintiff's building situated relatively close to a public highway could have been caused by some agency or instrumentality other than the dynamite explosion set off by the defendant the doctrine of res ipsa loquitur was not applicable.
However, where expert opinion evidence would justify a finding that the damage to plaintiff's building resulted from blasting and that careful use of the dynamite by the defendant in blasting a nearby bridge abutment would not have caused the injury the issue of liability should have been submitted to the jury in the absence of evidence of any blasting in the vicinity by anyone other than the defendant.
Expert opinion that the damage to plaintiff's building could reasonably have been avoided by the careful use of the dynamite by the defendant was competent evidence of lack of due care and the fact that the expert was ignorant of the procedures actually adopted in the blasting operation did not require that it be rejected.
Certain evidence was too speculative to warrant a finding that other damage to plaintiff's building resulted from the defendant's use of heavy highway equipment in removing earth adjacent to the building.
CASE, for negligence to recover damages alleged to have been occasioned to the plaintiff's building in July, 1952, in the course of the defendant's reconstruction of a nearby highway and bridge at Hinsdale. Trial by jury. At the close of the plaintiff's evidence the defendant's motion for a nonsuit, on the ground that there was no evidence to warrant a finding of causal negligence on the part of the defendant, was granted subject to the plaintiff's exception. The plaintiff's bill of exceptions was allowed by Leahy, J.
The building alleged to have been damaged was acquired by the plaintiff at foreclosure sale in 1950. It was approximately fifty years old and for at least twenty-five years had been used for a foundry. It was sold to plaintiff, with six tracts of land, water power rights, and a new office building, for $7,700. There was evidence that some five or six years previously the brick foundation of the foundry, most of which was below ground level, had been partially replaced by a cement foundation or cap and a new sill installed for a distance of some thirty-five feet from the northeast corner of the building; and that following these repairs the sills and the foundation were "in good shape." The plaintiff leased the foundry from September, 1950 to May of 1952, for use to house forty to sixty thousand chickens. When the tenant vacated, the building was cleaned and "locked up" and it remained unused thereafter.
Between June and November, 1952, the defendant was engaged in rebuilding the highway which passed within eight to ten feet of the foundry building. There was evidence that in July a nearby bridge abutment was blasted with dynamite and that no other blasting was done.
The plaintiff testified that shortly after he acquired the building he repaired the roof and that when he last saw the premises in June, 1952, before the road construction started, the foundation was "in good shape" and there were no cracks in the north wall. The plaintiff who resided in Keene, went to the building in August, 1952, and found the northeast wall cracked and "pushed in sort of plow shape," and the steam pipes hanging. He testified that the foundation was also cracked. The following October, he found the building to be in worse condition, with the foundation "all pushed in on that corner" and the "clapboards . . . hanging in space."
An expert witness who had examined the building at the plaintiff's request in early August testified that he found the wall "pushed in just a little" and badly cracked over a distance of 25 to 30 feet from the northeast corner, the roof sagging "a little," some windows broken, and "the pipe . . . jarred down . . . on the ground." He had no information about the quantity of dynamite which had been used in the blasting, or about the nature of the bridge abutment, but it was his opinion that if blasting was done in July, the cracks which he found in the building in August were caused by the blasting. He also testified that he thought that he "could have blasted that abutment loose there without cracking that wall."
The same witness testified that he was again requested to examine the building in October, 1952, and that at that time "the wall was pretty near all in," the roof had "sunk down" eight to ten inches, more windows were broken, carrying timbers had dropped, and the pipes lay on the ground. It was his opinion that the further damage had been caused by the use of a bulldozer in removing dirt and back filling for a sidewalk, within four or five feet of the building. While he had not seen this dirt removed, he saw a bulldozer in the vicinity, digging and back filling, and it was his opinion that the dirt adjoining the building would not have been taken out by hand. Other facts are stated in the opinion.
Howard B. Lane (by brief and orally), for the plaintiff.
Devine Millimet (Mr. Shane Devine orally), for the defendant.
The law relating to liability for damages caused by blasting varies with various jurisdictions. See anno. 20 A.L.R. (2d) 1374. By the weight of authority, liability without regard to negligence is imposed for direct injury to property by the casting against it of rocks or other debris from blasting. Where the injury results from concussion or vibration alone, the same rule is applied in some jurisdictions. Whitman Hotel Corp. v. Company, 137 Conn. 562; Hickey v. McCabe Bihler, 30 R. I. 346; Federoff v. Harrison Constr. Co., 362 Pa. 181; Exner v. Sherman Power Const. Co., 54 F.2d 510. And see, Restatement, Torts, s. 519, s. 520, comment c; Gregory: Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359, 380, 395; Prosser, Torts, s. 59. In other jurisdictions, notably in New York, proof of negligence is required in the latter class of cases. Booth v. Rome W. O. T. R. Co., 140 N.Y. 267; Jenkins v. A. G. Thomasello Son, Inc., 286 Mass. 180; Reynolds v. Hinman Co., 145 Me. 343.
No cases directly in point in this jurisdiction have been found or called to our attention. In Bassett v. Dodge, 77 N.H. 602, the defendant's motion for a nonsuit was held to have been properly denied in an action to recover for the negligent burning of the plaintiff's building in consequence of a fuse being blown onto a roof by explosion of a charge of dynamite a few yards from the building. The evidence of the defendant's fault was held to present a jury question of "whether the ordinary man would have exploded such a blast, in such a place, in such a way, on such a day, without doing anything whatever to protect the plaintiff's buildings." In Honnon v. Kerr, 85 N.H. 386, the issue was whether the plaintiff was entitled to an instruction that the defendant was liable for damages caused by the use of dynamite when he had no permit from local authorities to use the dynamite. In entering judgment for the defendant, the court held the statute applicable only to sale, transportation, and storage of dynamite and not to its use in business, commenting that regulation of business use had not been thought necessary. "Careful use is required regardless of the statute, reasonable anticipation of the results of its use is a duty of care, and care may mean every precaution human ingenuity may suggest. Blaisdell v. Company, 75 N.H. 497." Id., 388. No claim of absolute liability at common law appears to have been advanced.
In the case before us the plaintiff's declaration alleges negligence, and he recognizes that "probably the absolute liability doctrine is not the law of New Hampshire." Brown v. Collins, 53 N.H. 442; Bowdler v. Company, 88 N.H. 331, 333. See Smith, Liability for Damage to Land by Blasting, 33 Harv. L. Rev. 542, 667. The plaintiff argues however that there was evidence of negligence to warrant submission of the case to the jury, and further that the rule of res ipsa loquitur should apply, since the dynamite was at all times under the exclusive management and control of the defendant. See Foss v. Baker, 62 N.H. 247, 249; McCourt v. Travers, 87 N.H. 185, 186. The doctrine of res ipsa loquitur is one which this court had recent occasion to examine in Smith v. Company, 97 N.H. 522, 524, where its requirements were fully set out. For reasons there indicated it cannot be relied upon to establish causation in this case. See anno. 20 A.L.R. (2d) 1374, supra, 1397-1398. The damage to the plaintiff's building, situated as it was adjoining the public highway, obviously could have been caused by some agency or instrumentality other than the dynamite set off by the defendant.
The issue is whether there was evidence upon which a reasonable man could find that the damage resulted from the defendant's conduct and if so, that the conduct was negligent. With respect to the damage alleged to have been discovered in August, we think that there was such evidence. The evidence was that in June, 1952, the building was in good condition, that in July the defendant blasted out a nearby bridge abutment, and that in early August the damage described by the plaintiff and his expert was found to have occurred. The expert was a contractor with thirty years' experience in contracting and in the use of dynamite. He gave it as his opinion that the damage which he saw was caused by "Dynamite. Blasting."
It is true that this evidence was to some extent circumstantial. No eye-witness testified that the blasting and the damage were simultaneous or even nearly so. Such damage could have resulted from other causes. The building was old, and closely adjacent to the highway where it would be subjected to the hazards of public travel and resulting vibration. The issue, however, was one to be determined according to the probabilities.
The failure to more closely identify the time of damage with the time of blasting (see Weaver v. Benson, 254 S.W.2d 95, 97) might affect the weight of the evidence, but it was not necessarily on that account speculative. Olena v. Company, 82 N.H. 408. Cf. Nadeau v. Stevens, 79 N.H. 502. The possibility that the blasting caused the damage could reasonably be found "the most probable possibility disclosed by the evidence," and blasting the most probable cause. Emery v. Company, 89 N.H. 165, 167, and cases cited.
The jury could find from other testimony by the same expert that the blasting operations would have caused no damage if properly conducted, and hence that the blasting was negligently done. The cases of Parent v. Company, 70 N.H. 199, and Nadeau v. Stevens, 79 N.H. 502, supra, relied upon by the defendant do not require a different conclusion. In the Parent case it was held that there was no error in excluding expert testimony where there was no proof of two hypotheses upon which it was based. In the case before us, the witness' assumption that dynamite was exploded was established by proof, and his testimony that the damage was caused by it was based upon his personal observation of the damage done. His testimony that the charge could have been exploded without damage was based upon experience in the use of dynamite and not upon assumptions as to the methods used by the defendant. It is possible that evidence concerning those methods and "just what charges they did use in those abutments" would have led to. a finding that the defendant in fact exercised due care. But the opinion of the plaintiff's expert did not require rejection as a matter of law merely because he was ignorant of the procedures actually adopted by the defendant. His opinion that the damage could reasonably have been avoided was competent evidence of lack of care. O'Regan v. Verrochi, 325 Mass. 391; Kelly v. McKay, 149 Tex. 343.
In the Nadeau case there was no evidence of what caused the accident giving rise to the action, and no evidence tending to make one possibility more probable than another. In the instant case evidence of causation was supplied, as was evidence from which negligence could be found. Since the dynamite was under the exclusive management of the defendant, an inference that such negligence must have been the defendant's, was justified. See Akerly v. Express Agency, 96 N.H. 396, 403; McCourt v. Travers, supra.
We conclude therefore that the testimony of the expert that the damage resulted from blasting, the absence of evidence of any blasting other than by the defendant, and the testimony which would warrant a finding that careful use of the dynamite (Honnon v. Kerr, supra) would not have caused the injury, furnished a reasonable basis for a finding for the plaintiff. Coffey v. West Roxbury Trap Rock Co., 229 Mass. 211; Goldman v. Regan, 247 Mass. 492; O'Regan v. Verrochi, 325 Mass. 391, supra.
The nonsuit was properly entered with respect to any claim that the additional damage discovered in October resulted from the use of heavy equipment in removing dirt adjoining the building. The plaintiff's expert conceded that there would be no reason to anticipate damage unless machinery was used closer to the building than the "curb line" about five and one-half feet away. It was obvious that he could not say how the dirt was removed. His assertion that it was removed by machinery because he saw a bulldozer "down the road further" and because "they wouldn't take it out by hand" was too speculative to warrant a finding of damage caused by negligent use of machinery in removing the dirt. Nadeau v. Stevens, 79 N.H. 502, 504; Ahern v. Company, 88 N.H. 287.
For reasons previously indicated the issue of negligence in blasting should have been submitted to the jury.
New trial.
All concurred.