Action at law by plaintiffs for damage to their home as the result of air concussions and ground vibrations caused by defendant’s mile distant use of explosives in connection with its rock quarrying operations. Trial to jury resulted in a verdict for plaintiffs. Defendant’s motions for judgment notwithstanding the verdict, and for new trial, were overruled, subject to the condition a new trial be granted absent remittitur by plaintiffs, and they complied. Defendant appeals. We affirm.
The factual situation will be later considered as it relates to issues presented.
Errors assigned are, trial court erred in: (1) Refusing to give a jury instruction to the effect that a user of explosives is liable only if he should have realized likelihood of resultant harm to person or property of another; (2) overruling defendant’s objections to instruction No. 4 as given; (3) admitting evidence regarding similar damage to the property of others; and (4) overruling defendant’s motion for mistrial after testimonial reference by one of the plaintiffs to presence of an adjuster while post-event seismological recordings were being effected.
These assignments will be considered in the order presented.
I. Defendant requested, inter alia, an instruction be given to the effect that although dynamiting is an extrahazardous activity, one of the factors to be considered by the jury regarding defendant’s liability, if any, was the likelihood that some person, or property would be harmed. In oral argument both parties equate this with “foreseeability”. It will be so considered.
Since 1916 we have consistently adhered to that concept sometimes previously referred to as strict liability, but in cases of the nature here involved, now more appropriately termed “liability without fault”. See Lubin v. City of Iowa City,
Inferentially defendant asks that we now engraft upon our adopted “liability without fault” standard, the element of “foreseeability”, akin to that which applies with
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regard to the duty owing by land owners to invitees. See Hanson v. Town and Country Shopping Center, Inc.,
For reasons stated infra we must refuse this request.
Liability, absent fault, exists when neither care nor negligence, neither good nor bad faith, neither knowledge nor ignorance will save defendant. In this regard see the definition of strict liability, Black’s Law Dictionary, Revised Fourth Ed., page 1591.
In other words, if one engages in an activity on his own land of such hazardous nature as to involve risk of harm to the person, land or chattels of neighboring parties, he is liable for the consequences proximately resulting therefrom without regard to degree of care, scientific manner in which done, purpose or motive. Watson v. Missisippi River Power Co., supra, at
And, as stated in Monroe v. Razor Construction Co., supra, loc. cit.,
Consequently the user of explosives acts at his own peril and is liable if damage proximately results to another, either from the direct impact of debris thrown by the blasting, or from consequential concussions or vibrations. In addition to authorities cited, supra, see Exner v. Sherman Power Const. Co., (2 Cir.)
We now hold, it was not incumbent upon plaintiffs to show injury to their property was likely or should have been foreseen, recognized or anticipated by defendant.
It is to us evident any other conclusion would not only contravene but devitalize the liability without fault rule to which we stand committed in cases such as that at bar.
Trial court correctly refused to instruct the jury in accord with defendant’s request.
II. By instruction No. 4 the jury was told: “You are instructed that one who uses on his own lands something inherently dangerous and likely to damage his neighbor’s property is liable for harm resulting thereto although due care is exercised to prevent any harm.
"The use of dynamite or other like explosive is inherently dangerous and likely to damage the user’s neighbor’s property.” (Emphasis supplied).
The timely exception voiced by defendant seemingly focuses on the italicized portion of this instruction.
Touching on that subject this court said in Lubin v. City of Iowa City, supra, at
Surely it is a matter of common knowledge, and we accord judicial notice to the fact, that blasting by use of dynamite or other explosives
is
a hazardous activity and as such likely to damage others. See Boyce v. United States, D.C.,
For all the reasons heretofore set forth we find neither substance nor merit in defendant’s exception to instruction No. 4 as given. Enos Coal Mining Company v. Schuchart,
III. Among those witnesses testifying for plaintiffs were two neighbors, Albert Poli and John Head.
Before they were called, defendant moved the court to direct that no evidence be offered regarding damage to other buildings or structures in the same general. area. This motion was overruled, subject to some qualifications.
Plaintiffs’ evidence was to the effect they own and occupy a home located about six-eighths of a mile southeast of defendant’s quarry. It is a 32' x 32', two story, stucco covered, hollow tile structure, with basement, and was in good solid condition prior to the blasting by defendant. When these quarrying operations were in progress, which had worsened by 1966, the house shook, a window broke, and structural cracks began to appear.
Additionally, Carl C. Barbaglia, an experienced building contractor, testifying on behalf of plaintiffs, stated he was in their home at one time and it was in good condition. On a second visit he found cracks, both diagonal and vertical. He opined, vertical or horizontal cracks cannot result from settling and are usually caused by jar, shaking or possibly wind.
In substance Albert Poli stated he lives about three-fourths mile west of the quarry, in a 24' x 48' frame house with cement block basement. The structure had never settled, but the foundation is shaken and cracking all over.
John Head testified he resides approximately 70 rods southeast of plaintiffs, or about one and a fourth miles from the quarry. He had seen cracking and hairline cracks in the Davis home. His more remote residence trembled whenever there was blasting at defendant’s quarry, and every room reveals damage to plaster and paper.
Defendant claims this evidence was erroneously admitted, due to absence of foundation, and irrelevancy.
Apparently we have never previously had occasion to pass on the precise question thus presented.
In
“Evidentiary facts such as those undei discussion have been held admissible where the court has considered that evidence of blast damage to other property shed light on the character of the explosion in issue and its causal connection to the damages to the plaintiff’s premises. Such facts should not be withheld from the jury, as they would assist its deliberations.” See also in this regard Jaramillo v. Anaconda Co.,
As stated in Benyo v. Kaiser-Nelson Corp.,
“This is true as to other buildings on property in the neighborhood more distant from the place of blasting than plaintiff’s property. Ledbetter-Johnson Co. v. Hawkins,
“In Whitman Hotel Corp. v. Elliott & Watrous Engineering Co.,
“In Weaver v. Benson,
We are persuaded the views expressed above, being premised on sound reason, should be and are accepted. But that alone does not resolve the issue at hand.
IV. Without question, relevancy must be established as a condition to introduction of evidence regarding similar events or occurrences.
Stated otherwise, as the court said in Poston v. Clarkson Construction Company, Mo.App.,
And see Jones on Evidence, Fourth Ed., sections 135-139.
But it is for the trial court, in the first instance, to determine, in the exercise of sound judicial discretion, whether an adequate showing of similarity has been made. Deshotel v. Atchison, Topeka & Santa Fe Railway Co.,
*228 Trial court found, at least inferentially, the conditions or circumstances attendant upon damage to the Poli and Head homes were reasonably similar to those in the case at bar. This would in turn mean, relevancy was established with such reasonable sufficiency as to permit introduction of collateral fact testimony by these witnesses.
In light of the foregoing authorities we find no reversible abuse of discretion by trial court on the subject assignment of error.
V. Plaintiff, Joe R. Davis, on direct examination, testified to the effect that May 16, 1968, seismological recordings were being made in and around his home with several people present. Then these questions were asked and answers given:
“Q. Will you tell us who ? A. The guy who was sitting here yesterday with that seismograph test and my wife and the lady that works for her and Junior Holmes and there was another person there. Do you want me to mention who he was?
“Q. If you want to. A. "Would it be wise?
“Q. I presume so. A. I presume he was an adjuster — ”
Thereupon defendant, in absence of the jury, moved for a mistrial, contending there had been prejudicial reference to insurance. As aforesaid, it is now claimed trial court erred in overruling this motion.
We have repeatedly adhered to the rule that neither direct nor indirect suggestion should be made to the jury regarding existence of insurance coverage for damages sought. Price v. King,
Balanced against this, however, is our holding that error arises only when one litigant intentionally alludes to the fact that an adverse party carries insurance. Stewart v. Hilton,
Although given in response to questions asked by plaintiffs’ attorney, the foregoing answers merely inferred existence of some insurance, in no manner associated with defendant. See in this regard Stewart v. Hilton, supra, and Johnston v. Calvin,
Trial court, after careful consideration, concluded reference to an unidentified adjuster did not rise to the dignity of error such as to warrant a mistrial. We agree.
VI. The trial jury found plaintiffs were entitled to recover $5000 from defendant and returned a verdict accordingly.
At the outset, the record before us fails to reveal entry of any judgment, either on the verdict, rule 223, Rules of Civil Procedure or pursuant to remittitur.
As aforesaid, defendant moved for judgment notwithstanding the verdict, or alternatively a new trial. These motions were overruled subject to the condition, a new trial be granted unless plaintiffs, by remit-titur, agree to entry of judgment in the reduced sum of $3000. Resultantly plaintiffs filed remittitur.
Defendant appealed despite plaintiffs’ consent to entry of judgment for a lesser amount than that found due them by the jury. Consequently we must now consider rule 250, R.C.P. It provides: “The court may permit a party to avoid a new trial under rule 243 or 244 by agreeing to such terms or conditions as it may impose, which shall then be shown of record and a judgment entered accordingly.
"Any such term or condition or judgment entered pursuant thereto shall he deemed of no force and effect and the original judgment entered pursuant to rule 223 shall he deemed reinstated in the event of an
appeal." (Emphasis supplied). See Hall v. Wright, Iowa,
No useful purpose will be served by a summarization or repetition of all testi *229 mony presented regarding damage caused to plaintiffs’ home by reason of defendant’s blasting operations. There is evidence disclosing the house was worth from $12,500 to $15,000 before, and $5000 to $6000 after having been so damaged.
Plaintiffs are entitled to benefit of a judgment on the verdict. See rule 223, R.C.P.
Under the circumstances we are satisfied defendant assumed the risk attendant upon appeal; rule 250 R.C.P. is applicable and no remittitur should here be ordered.
This case must therefore be affirmed and remanded with instructions that judgment, .entered upon the remittitur be now set aside, and in lieu thereof or, in any event, judgment be entered in accord with the verdict.
Affirmed, and remanded with instructions.