Arthur v. . Henry

AlleN, J. There are forty-three exceptions in the record, all of which may be considered under the following propositions: (1) Is there evidence which justified submitting the case to the jury? (2) Is there evidence upon which the defendant can be held liable for the acts of Faragher Company? (3) Is there any evidence of wanton or malicious conduct on the part of the defendant which will support an award of punitive damages? (4) Did the plaintiff consent to the operations of the defendant, and if so, does such consent absolve him from liability? (5) Does the evidence of the plaintiff that he claimed no damages prior to August, 1906, prevent "a recovery of other damages, not barred by the statute of limitations ? (6) Is there error in refusing the issues tendered by the defendant, or in submitting those passed on by the jury? (I) Is the plaintiff’s cause of action or any part thereof barred by the statute of limitations ? Eliminating for the present the effect of consent by the plaintiff to the operations of the defendant, and also the plea of the statute of limitations, it is well to consider the first three- propositions together, as much of the evidence bears on all of them, and it is also advisable to determine in the outset how far, if at all, the defendant is liable for the conduct of the Faragher Company. It is in evidence that, prior to the lease to the Faragher Company, the defendant had been operating his quarry, and that blasting was necessary in the work he was doing; that he had thrown stones on the premises of the plaintiff; that complaint had been made and he had been told of the danger to the plaintiff, and that the lease to the Faragher Company was for the purpose of having these operations continued. It is also in evidence that the quarry was within the corporate limits of the city of Asheville, and that there were several homes, including that of the plaintiff, near to it. *402 This evidence, if accepted by the jury, brings the case within the doctrine of Hunter v. R. R., 152 N. C., 688, in which the defendant began blasting on its right of way for a lawful purpose, and after notice of danger to the plaintiff entered into an agreement with another to do the work in the same way, under a contract which, by its terms, would establish the relation of independent contractor, and it was held that the defendant was liable for the acts of the contractor. . ^ In Thomas v. Lumber Co., 153 N. C., 358, Justice Manning reviews the cases holding that one cannot escape liability by entering into an independent contract, if the work to be done is intrinsically dangerous, and says, with reference to the Hunter case, supra: “In Hunter’s case this Court ruled that the work there handed over to the independent contractor to be done, to wit, blasting of rock, fell within the established exception to the rule of nonliability, by reason of its dangerous character.” These decisions were the result of the unanimous opinion of the Court, and on their authority we must hold that the work to be done was of such character that the defendant could not protect himself by the lease he made, and that he is liable for the acts of the Faragher Company in the prosecution of the work. If so, all the evidence as to the operation of the quarry may be considered in determining whether there was sufficient evidence to be submitted to the jury. The'plaintiff was entitled to recover damages, if the defendant threw stones upon his land without his consent, and if he consented to the use of the quarry, he could also recover if the work was negligently done. As we are not now considering the effect of consent on the part of the plaintiff, the question then arises, Was there evidence of negligence on the part of the defendant or Faragher Company? There was evidence that by the use of proper precautions there would be no danger to the plaintiff's property, and that persons 400 or 500 yards away would not be disturbed by the noises more than by ordinary traffic. There was also evidence that the precautions used were not sufficient; that the defendant used for smothering the blasts six *403 ■small pine logs; that stones were showered on the premises of the plaintiff, and fell around the house the plaintiff and his sister were living in; that one stone as large as an ordinary letter bos came over the house and shattered the limbs of a tree in front of the house; that stones fell on the sheds on the premises, and that g'rapevines and fruit trees were destroyed. There was also evidence that one of the blasters employed at the quarry was reckless, and that another said just before a blast that he was going to shell the town, and that when he fired the blast rocks and stones flew everywhere. This was, in our opinion, ample evidence of negligence. There was much evidence to the contrary, tending to prove that diligence was exercised by the defendant and- that he was careful to avoid injury to the plaintiff, but it is not within our province to pass on the credibility of the witnesses. If there was evidence of negligence for, the consideration of the jury, -was there any view of the case in which the question of punitive damages could be submitted to them ? If there was evidence that the acts of the defendant evinced a reckless indifference to the rights of the plaintiff, that they were done wantonly, or from a bad motive, punitive damages could be awarded. There was evidence that the defendant knew that the operation of the quarry was dangerous, and that it was injurious to the property of the plaintiff; that he had tried to buy the plaintiff’s property; that complaints had been made to him from time to time and that he had promised to correct the trouble; that he had endeavored to secure the services of the plaintiff to draw a oontraet for him with other persons, by which he would escape liability; that he had proposed to lease the quarry to insolvent persons for this purpose; that he had threatened the plaintiff, saying he was going to operate a power-house all night; that the plaintiff told him that he would have him indicted, and that he replied that he would find a way by which he could use the quarry without incurring any liability to the plaintiff; that within a few months he leased the quarry to the Faragher Company for the purpose of having it operated, in which lease there was no stipulation for prudent management, or that any pre *404 cautions should be taken to protect the property of the plaintiff, but it was provided therein that said company would save the defendant harmless from any and all actions or claims for damages of all kinds, character, or description caused by any operations, conduct, or work in, at, and upon the said quarries, by, through, and with its servants, agents, and employees, and would prosecute any and all actions necessary for the full, complete, and ample protection of the defendant against such claims, and that while the quarry was operated by the Earagher Company conditions were worse than before. There was also evidence on the part of the defendant directly contradicting the evidence of the plaintiff, and tending to prove that he had treated the plaintiff at all times with neighborly consideration; that he had always discontinued the operations when the plaintiff asked him to do so; that he never resumed the operation of. the quarry unless requested to do so by the plaintiff; that he made the lease to the Earagher Engineering Company in good faith and for-the purpose of carrying out works of public improvement; that the Faragher Engineering Company was capable of carrying on these operations in an inoffensive manner; that Mr. Odell, the engineer of the Earagher Engineering Company, was an engineer of ability and knew how to carry on these operations without offense, and that it would be contrary to all the intercourse between the plaintiff and the defendant to find that the defendant had been actuated by the sinister motive of wishing to injure the plaintiff by this lease.. These were matters for the jury and at least furnished some evidence that the defendant was recklessly indifferent to the rights of the plaintiff. If there was evidence of negligence and wantonness on the part of the Earagher Company, the conversation of the plaintiff with the defendant in 1904, as to -the operation of a quarry near him, the letter of 16 February, 1906, and the rock which fell on the house of the plaintiff in 1904, were competent as tending to fix the defendant with notice of the danger to the plaintiff’s property at the time of the lease to the Earagher Company, and whenever punitive damages may be awarded, evidence of the *405 financial condition of tbe defendant is admissible in behalf of the plaintiff (Tucker v. Winders, 130 N. C., 147), and his Honor carefully restricted the evidence to these purposes. This brings us to the consideration of the evidence tending to show consent on the part of the plaintiff, and it must be remembered that the defendant has at all times denied that there was negligence in the operation of the quarry, and that his contention is that the plaintiff consented for him to work the quarry, and not for him to work, it negligently. There is evidence of such consent, but it, is coupled with the condition that the quarry must not threaten injury to life or property, and the question was properly submitted to the jury, as follows: “If the jury shall find from the evidence in the case that the plaintiff, from time to time in the progress of the quarrying operations of defendant alleged in the complaint, requested defendant to continue his work and not to stop on his (plaintiff’s) account, and defendant did continue Until notified by the plaintiff to desist and cease to carry on said operations, and the defendant, upon the receipt of such notice, did desist and cease, the plaintiff cannot recover damages on account of injuries to his property resulting from said operations, provided due care was exercised in the conduct of such operations; but a request of the plaintiff to the defendant not to cease and discontinue his work on those premises will not be construed by the law to authorize the defendant to conduct these operations in a negligent or in an obviously dangerous manner; and if you find from the evidence that the operations of the defendant in this quarry, and this stone crusher, during the period covered by your inquiry, were at the instance and express suggestion of the plaintiff, and you further find that these operations were conducted with due care, and that there was no other or further injury to the property of the plaintiff than was necessarily involved in the operation of the quarry, then the plaintiff would not be entitled to recover. But if you find that the operations were negligently carried on, and that unnecessary injury was done to the property of the plaintiff, the fact of the plaintiff’s request or suggestion would not deprive him of the right to recover here.” *406 Nor did the statement of the plaintiff on the witness stand, that be claimed no damages prior to 4 August, 1906, prevent an inquiry as to all damages not barred by the statute of limitations. It is a statement which ought to have had weight with the jury, but it does not amount to a retraxit, and as a contract there is no mutuality and no consideration. The issues adopted by the court were sufficient to present all the contentions of the parties, and they arose on the pleadings, and when this is true, the refusal to submit other issues is not error. Nor do we find any error as to the statute of limitations. The action was commenced on 4 August, 1909, and it was admitted that the defendant was absent from the State continuously for seventeen months, from 22 May, 1906, and his Honor told the jury they could not award damages for acts done prior to three years before the commencement of the action, excluding from the computation the time the defendant was absent from the State, which is in accord with the statute. Revisal, sec. 366. His Honor might with propriety have given the ninth prayer for instruction as a cautionary measure, but he was not compelled to do so, as there was no evidence of injury to the health or person of the plaintiff, and there is no suggestion in the record that he claimed damages on that account, and the charge permits no recovery except for injury to property. We have examined the record with care, and have considered all the exceptions, and find No error.