Settle v. Southern Railway Co. ( 1909 )

WALKER, J., did not sit on the hearing of this case. Defendants appealed. This action was originally instituted against the Southern Railway Company and the above-named defendants, Yandle Bros., Charles Yandle Company and Charles Yandle, contractors, for damages to plaintiff's house from blasting operations, conducted by the said contractors in constructing a track for the railway company. The suit was not prosecuted against the latter, and judgment was obtained against the contractors. The jury found that the defendants were guilty of negligence and that the property of plaintiffs had been injured by (644) reason thereof. The only exception is to the refusal of the court to nonsuit the plaintiffs. On such motion the plaintiff's evidence must be accepted as true, and construed in the light most favorable to him. Millhiser v. Leatherwood, 140 N.C. 235.

There is much more than a scintilla of evidence in this case. The plaintiff's house was injured by concussions and vibrations, which were the result of blasting. Rocks weighing 200 pounds were hurled a great distance and across the French Broad River. No attempt was made to confine the blasts or to smother them. In making the blasts, as much as eight kegs (over two hundred pounds) of powder and twenty sticks of dynamite were used at a time. The evidence is much stronger than the evidence in Blackwell v.R. R., 111 N.C. 151, and Kimberly v. Howland, 143 N.C. 398.

We are not prepared to say that there is no evidence of negligence sufficient in probative force to be submitted to a jury.

The motion to nonsuit was properly overruled.

No error.

Cited: Christman v. Hilliard, 167 N.C. 6.