158 N.Y.S. 165 | N.Y. App. Term. | 1916
The plaintiff has recovered damages for injuries to personal property which he claims were caused by negligent blasting by the defendant. The evidence of negligence is very vague. There is absolutely no testimony which shows the manner in which the blast was set off other than the testimony that the report was very loud and the concussion very great, and that rocks were cast from the blast upon the premises occupied by the plaintiff. Inasmuch, however, as the action was not for injuries caused by the falling of these rocks, but only for injuries caused by the concussion, the testimony of the physical precipitation of the rocks upon the plaintiff’s premises is material only in so far as it may tend to show that the blast was excessive.
Even if we assume that in the present case the facts are sufficient to reasonably allow the inference of negligence, yet the defendant produced affirmative evidence to show the method it actually used and that this method was not negligent. That testimony, if true, would completely rebut any inference that might be drawn from the plaintiff’s case. The plaintiff stated that he could prove the amount of the charge used, but he did not do so. If he has such testimony, he should have produced it. While possibly the trial justice may have arrived at the conclusion that the testimony of the defendant’s .witnesses was improbable and unworthy of credence, yet even then the decision in favor of the plaintiff rests upon a very slight foundation. We need not, however, now determine whether on that account we should reverse the judgment and order a new trial, where the plaintiff could present all the evidence he may have, to establish in a more satisfactory manner the defendant’s alleged negligence, because in any event the record discloses no sufficient basis for the award of damages.
Judgment should therefore be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event. All concur.