Wiggins v. Hiawassee Valley Railway Co., 171 N.C. 773 (1916)

May 31, 1916 · Supreme Court of North Carolina

171 N.C. 773

J. W. WIGGINS et als. v. THE HIAWASSEE VALLEY RAILWAY COMPANY.

(Filed 31 May, 1916.)

negligence — Blasting—Trials—Evidence—Questions ior Jury.

Evidence in this action tending to show that a railroad company, in blasting its right of way for its road, used a charge of dynamite containing 25 pounds on the top of a large rock, 14 feet x 6 or 8 feet, where it had a gap or cavity facing the plaintiffs house, with a high place on the rim on the side opposite, and from the explosion, set off without warning, stones were thrown over plaintiffs house 100 yards away, causing the chimney and other parts in the interior of the house to fall, injuring various members of the plaintiffs family therein, is sufficient to be submitted to the jury upon the issue of defendant’s actionable negligence. As to whether negligence is necessary to be shown in trespass of this character, qumre.

ActioN tried before Ferguson, J., and a jury, at November Term, 1915, of CHEROKEE.

Three actions were begun in the Superior Court of Cherokee County against the defendant; one by J. U. Wiggins and wife, Lillie Wiggins; one by Adeline Wiggins, and one by J. U. Wiggins, to recover damages alleged to have been sustained by the plaintiffs about 13 January, 1915, from blasting operations being conducted by the defendant. The first two actions were to recover for personal injuries sustained by Lillie Wiggins and Adeline Wiggins, respectively, and the third was by the husband of Lillie Wiggins, and father of Adeline Wiggins, to recover damages for loss of service, etc., resulting from the alleged injuries sustained by Lillie Wiggins and Adeline Wiggins.

The consolidated actions were tried before Ferguson, J., at November Term, 1915, of Cherokee Superior Court, upon the following issues:

1. Was the defendant negligent, as alleged in the complaint? “Yes.”

2. Was tbe plaintiff Lillie Wiggins injured, by tbe negligence of tbe defendant? “Yes.”

3. Wbat damage, if any, is tbe plaintiff Lillie Wiggins entitled to recover ? “$500.”

4. Was tbe plaintiff Adeline Wiggins injured by tbe negligence of tbe defendant ? “Yes.”

5. Wbat damage, if any, is tbe plaintiff Adeline Wiggins entitled to recover ? “$400.”

6. Wbat damage, if any, is tbe plaintiff J. U. Wiggins entitled to recover? “$100.”

From tbe judgment rendered tbe defendant appealed.

Sherrill <& Harwood, Dillard & Hill for plaintiffs.

J. D. Mallonee■ and Martin, Rollins & Wright for defendant.

Pee Cueiam.

There is evidence tending to prove tbat tbe defendant was building a railroad near tbe dwelling-bouse of J. U. Wiggins and was blasting out rock. On tbe day of tbe injury it placed a charge of dynamite containing 25 pounds or more on tbe top of a large rock. Prior to tbat time tbe defendant bad placed a heavy shot in behind this rock which bad slid tbe rock down. This rock was a very large one, about 14 feet long, 6 or 8 feet high, and was broad. Tbe rock bad a sort of gap or cavity on top facing tbe Wiggins bouse, with a high place or rim on tbe side opposite tbe bouse. Tbe shot complained of was placed in this depression with some mud on top of it.

Plaintiff’s bouse was about 100 yards from tbe blasting operations. Tbe force of tbe blast threw pieces of stone over on plaintiff’s land and about bis bouse. Tbe wife, Lillie Wiggins, and her 13-year-old daughter were in tbe bouse. No one was sent to warn them. Tbe force of tbe blast jarred tbe bouse; jarred off tbe door easing which-bad been nailed on with 8-penny nails; knocked a piece off tbe water shelf; damaged tbe chimney, jarred one chimney loose from tbe bouse; shivered tbe top of tbe big chimney; knocked a stove flue loose from tbe bouse, shook fruit jars off tbe shelf and broke them; jarred pictures and stove pans from tbe walls; broke tbe window sash and shivered tbe panes. Mrs. Wiggins was knocked down, rendered unconscious, and permanently injured. Tbe little girl was knocked off tbe stairway and badly injured. Tbe blast tore the big rock all to pieces; tore a great bole in tbe bank up to tbe top of tbe bill; threw rock beyond tbe bouse into tbe yard; and threw rock too big to handle-into tbe bottom-land.

There are four grounds of negligence alleged in tbe complaints:

1. Blasting in a negligent manner in disregard of tbe rights and safety of tbe plaintiffs.

2. Tbe use of excessively large charges of dynamite.

3. Tbe negligent failure to take proper care against injury or damage by said blasts.

4. Failure to give proper warning before exploding tbe blasts alleged to bave caused tbe injury to tbe plaintiff.

We are of opinion tbat there is abundant proof of negligence (even if proof of negligence be necessary where such a trespass is committed upon tbe property and rights of another) to justify tbe submission of tbe issues to tbe jury.

Tbe six assignments of error relating to tbe admission and exclusion of evidence bave received careful examination and are without merit. We find no error in those rulings of tbe judge which warrants us in ordering another trial. There were no prayers for instruction, and tbe exceptions to tbe charge cannot be sustained.

Tbe instructions to tbe jury were full, clear, and free of error. They presented tbe questions at issue fairly and correctly.

No error.