Lexington & Eastern Railway Co. v. Baker

156 Ky. 431 | Ky. Ct. App. | 1913

Opinion of the Court by

William: Rogers Clay,

Commissioner — Reversing.

On the east bank of the North Fork of the Kentucky ¡River in the town of Hazard, Kentucky, R. C. Baker owned a lot upon which were located a house and barn. During the years 1910 and 1911 the Lexington & Eastern Railway Company was engaged in constructing its road along the west bank of the river. At a point only a little over 200 feet from Baker’s residence there was a cliff of solid rock. In reducing the grade and constructing the roadbed, they used dynamite and other explosives and threw large quantities of rock on Baker’s residence and barn. Baker brought this action against the railroad company, Jones, Davis & Company, R. E. Mason and John Hurst, contractors, to recover damages in the sum of $650. The jury found for Mason and Hurst and returned a verdict against the railroad company and Jones, Davis & Company, for the sum of $300. From that judgment the railroad company appeals.

Appellant first insists that the trial court should have awarded it a peremptory instruction because there was no competent proof of plaintiff’s ownership of the property injured. The record, however, discloses the fact that plaintiff testified without objection that he was the owner of and in possession of the premises at the time of the blasting, and this was sufficient evidence of ownership to support an action for damages such, as this.

Plaintiff and bis witnesses testified that on frequent occasions during tbe blasting larg'e rocks were thrown on bis bouse and barn, and set out in detail tbe injuries resulting therefrom. Frequently when tbe blasting was going on be and bis family would have to leave tbe premises. He testified that be thought it damaged bis barn about $100 and bis bouse and household goods about $400 or $500. He bad tbe premises repaired in some respects, but was unable to state definitely what these repairs cost. Tbe repairs which be actually made on tbe property did not aggregate tbe amount of damages recovered. Tbe testimony of bis other witnesses in regard to tbe damage was of a character similar to bis. Their estimates of tbe damage done, without giving any facts on which to base them, were objected to. The court should have permitted tbe witnesses to set out in detail tbe injuries resulting from tbe blasting, and should have required them to state what sum was reasonably necessary to restore tbe buildings to tbe condition they were in prior to tbe injury.

Tbe court in its instructions told tbe jury that tbe measure of damage was tbe difference between tbe value of tbe bouse and barn before they were injured and their value to plaintiff after the injury, and such further sums as would compensate plaintiffs for bis loss of time and loss of tbe reasonable use and enjoyment of bis bouse and home. This is not tbe correct measure of damages in a case like this. Tbe injury was not permanent, but one that could be easily repaired. In such a case tbe measure of damages is a sum sufficient to restore tbe property to tbe condition it was in prior tó tbe injury, and such, further sum as will compensate tbe plaintiff for tbe diminution in the value of tbe use of the property during the continuance of tbe injury. Southern Ry. Co. v. A. M. E. Church's Trustees of Harrodsburg, 121 S. W., 972; Pickerill v. City of Louisville, 125 Ky., 229, 100 S. W., 873; Wallingford v. Maysville & Big Sandy Ry. Co., 107 S. W., 781, 32 Ky L. R., 1049.

It is further insisted that tbe court erred in telling tbe jury to find against tbe railroad company if tbe blasting was reasonably necessary, thus making it liable even though tbe injury to plaintiff’s property was caused solely by tbe negligence of independent contractors. In answer to tKis contention, it is sufficient to say that tbe allegation of tbe company’s answer that tbe work wás done by independent contractors was deniedl by reply, and there was no proof showing that they were independent contractors. That being true, the contractors were mere agents or servants of the railroad, and it is well settled in this state that where blasting operations result in a direct trespass upon the premises injured by casting soil or rock thereon, the liability of the railroad company causing the injury is absolute, and it must respond in damages irrespective of the question of negligence or want of skill. Langhorne v. Turman, 141 Ky., 809. However, in view of the fact that on another trial there may be evidence tending to show that those engaged in doing the .blasting were independent contractors, we deem it proper to say that if the work of blasting was necessary in the execution of the contract and such as would naturally and probably result in injury to plaintiff’s property, if done with ordinary care, the company cannot escape liability on the ground that it employed independent contractors to do the work. Probst, &c. v. Hinesley, 133 Ky., 64; Langhorne v. Turman, supra.

Judgment reversed and cause remanded for new trial consistent with this opinion.