Viele v. Paving

129 N.Y.S. 604 | N.Y. App. Div. | 1911

Rich, J.:

The defendant appeals from a judgment in favor of the plaintiff in- an action to recover damages for injuries to his house, caused by vibration and concussion attending blasting by the defendant, who was a contractor engaged in the construction of a public sewer. The only question for our consideration is whether there ■ was negligence in the manner and method of doing the work.

The plaintiff’s house was situated oh a hill at an elevation of 100 feet above the point of blasting and about 100 feet distant from it horizontally. His case rests on the testimony of one Landy, who was the inspector of combustibles of the city of Yonkers, .who inspected the work from time to time. He testified that he suggested to defendant’s foreman to reduce the size of the cut; the drilling of a relief cut; the use of four holes only, and less powder. He says: “As an expert, it is my opinion that the work could have been carried on at that tunnel by using a smaller quantity of explosives or in some other way even' at a greater expense, to avoid damaging Mr. Viele’s house. This could have been done by regulating the resistance of the charges using an ordinary amount of explosives and not blasting more than four holes at any one time.” I do not think this evidence sufficient to establish & prima facie case. It was incumbent upon the plaintiff to give som,e evidence tending to show that the suggested changes of method would have resulted in lessened vibration and concussion and would not have damaged the house; that they were practical and that they were not adopted by the defendant, which he omitted to do. The defendant called five witnesses, four of whom were engaged in the blasting, and one an expert. They were all practical men, having had years of experience in that class of work and in the use of dynamite and other explosives. They testify that the blasting was necessary and done in the ordinary, usual way and in a careful and diligent manner; that it was the only practical way in which it could have been done; that the methods suggested by Landy were not practical and would not have removed the stone; that the quantity of powder used was usual and ordinary in amount, but that after Landy suggested the use of less powder the amount of explosives was reduced from five and eight-tenths pounds of forty per cent per cubic yard to four and four-tenths pounds; that the blasting could not have been accomplished with a lesser charge ’of explosives, and that no other house in the vicinity, although there were several nearer the place of blasting than plaintiff’s, was injured or affected by the blasts. When the plaintiff rested, and again at the close of the evidence, the defendant moved to dismiss the complaint upon the ground that the plaintiff had failed to show that the defendant was negligent or did not use proper care and diligence in the prosecution of the work, either in the first instance or by a preponderance of the whole testimony. The motions were denied by the learned trial justice, and exceptions to the ruling present reversible error; (Booth v. Rome, Watertown & Ogdensburg Terminal R. R. Co., 140 N. Y. 267; Sullivan v. Dunham, 161 id. 290; Benner v. Atlantic Dredging Co., 134 id. 156; Cosulich v. Standard Oil Co., 122 id. 118; Hall Sons’ Co. v. Sundstrom & Stratton Co., 138 App. Div. 548.)

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.