Panagiotou v. Worlock Stone Co. ( 1939 )

Appeal from a judgment dismissing the complaint herein. Two causes of action are alleged: First, that defendant, by means of explosives, operated, and continues to operate, a quarry, adjacent to plaintiff’s premises in a careless and dangerous manner. Second, that, because of such dangerous operation, some of plaintiff’s cows have been injured and killed. Plaintiff asks for an injunction and damages. At the conclusion of plaintiff’s ease the trial court dismissed the claim for damages and discharged the jury. The trial continued before the court as to the action for an injunction. We think the dismissal was error. There was evidence from which the jury might have found that plaintiff’s cows were injured as a result of being struck by fragments of rock blasted from defendant’s quarry. The weight of such evidence and the issue of negligence were for the jury. Whether an injunction should be granted may depend upon a reappraisement of the facts. Judgment reversed, upon the law and the facts, and a new trial granted, with costs to abide the event. Hill, P. J., Crapser, Bliss, Heffeman and Poster, JJ., concur.