Fisher v. Ruch

Opinion by Rioe, P. J., This action was brought to recover damages for injuries done to the plaintiff’s house by blasting done by the defendant in the construction of a subway and a sewer in connection therewith in the street upon which the premises fronted. The injuries were caused by concussion, not by casting rock or earth upon the premises. This work was done under a contract with the city, which provided that the city should have supervision of the work, and that no blasting would be allowed unless the contractor first obtained a permit from the department of public safety through the director of the department of public works. The appellant’s counsel says in his history of the case: “The contractor was obliged to submit to the city’s supervision, and respect the orders of its officers.” The entire contract is not printed in the paper-book, but this statement seems to be borne out by what was said by counsel when it was offered in evidence. Such being the case, it would seem that, if the contract was to go in evidence, it would not be wholly irrelevant for the plaintiff to show, in connection with it, what orders relative to the work in question were given to the defendant by the city through its proper officers, within the scope of its supervisory authority. It would also [245] seem that orders relative to the manner of blasting, and especially as to the size of the charges, would come under this head. Proof that he respected them would not be a conclusive answer to the charge of negligence, nor would proof of his disobedience of them establish the charge. But it was a relevant fact that he was there with the city’s permission in the performance of a public work, and not as a mere wrongdoer. He would have had just reason to complain if proof of that fact had been excluded. It may not have been necessary for the plaintiff to prove it. He could have kept it in the background and made out his case without it. It was, however, reasonably to be expected that the question as to the defendant’s rights would arise in the case. It did arise when the defense was put in; and it is not, ordinarily, ground for reversal that the plaintiff introduced evidence in chief that might have been reserved for rebuttal. The evidence embraced in the first and second assignments of error related to the question above suggested; it was offered in connection with the contract to show the conditions in which the defendant was placed, and was relevant to the issue for the same reason that the contract itself was relevant. The effect to be given to it is another question. We entirely agree with the appellant’s counsel that the evidence was not competent for the purpose of showing, inferentially, the opinion of the chief engineer as to the methods that ought to be adopted in such work. If the defendant had reason to fear that the jury might give it the same effect as if the chief engineer had been called as a witness, and testified as an expert as to the propriety of the methods, doubtless the court would have given specific instructions confining the jury’s consideration of the evidence within proper limits, if such instructions had been asked. But the record does not show affirmatively that it was offered or use'd for the purpose above suggested, and we are not convinced that it was not competent for any purpose. The party offering evidence is bound, if requested, to state the purpose of it fully, and the party who objects must state his objection. If the purpose is not voluntarily stated, and the other party does not ask it to be stated, but objects to the offer generally, the general rule seems to be, that if the evidence offered is relevant and competent for any purpose, it is not re [246] versible error to admit it. It has been said that this rule is necessary to prevent injustice both to court and parties: Cullum v. Wagstaff, 48 Pa. 300. Granting, even, that it is not an inflexible rule, there is no good reason for departing from it in the present case. The first and second assignments of error are overruled. When the error assigned is the admission or rejection of evidence, the assignment must quote the full substance of the bill of exceptions or copy the bill in immediate connection with the assignment: Rule 22. The third assignment of error does not conform strictly to this rule. Moreover, upon examination of the bill of exceptions it appears that the specific objection to the question asked the witness was that he had shown no expert knowledge on the subject of blasting. He was then examined and cross-examined as to his qualifications, and after this was concluded the counsel said: “ I object to the witness.” This objection being overruled, the defendant excepted, and the witness gave the answer quoted in the assignment. So far as the record shows the objection that the question was not proper either in form or substance was not made on the trial, and the rule is, that “ where a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived:” Messmore v. Morrison, 172 Pa. 300; Gorman v. Bigler, 8 Pa. Superior Ct. 440. See also Corkery v. O’Neill, 9 Pa. Superior Ct. 335. Thus viewed there was no error in the ruling. We need not, however, put our decision upon either of the technical grounds mentioned. The assignment must be overruled for more substantial reasons. It is not claimed that the defendant would be liable under the pleadings if he was not negligent. Negligence is not to be inferred from the fact of injury and that alone. The defendant may be liable for such injury, but not in an action based on the allegation of negligence without other proof. Another point to be noticed is, that it is not alleged in the pleadings that it was negligence to displace the rock by blasting. The gravamen of the plaintiff’s complaint, as set forth in his statement, was, that the blasting was done in a negligent, careless and unskilful manner. This was the question to be determined under the pleadings, and the testimony of the witness went directly to that point. He was [247] qualified by experience, knowledge of the subject and the conditions to express an opinion as to the effect of the proper and skilful use of explosives upon adjacent properties. It was, moreover, a case in which such testimony was admissible. The question put to the witness called for his opinion as to the “ possibility ” of making the excavation without damaging adjacent property to the extent described. It was a relevant preliminary inquiry, although it might not be the conclusive test of the defendant’s liability. See Island Coal Co. v. Neal, 42 N. E. Rep. 953. But the witness did not stop with an affirmative answer to the question, but went on to say: “ With the use of explosives there is no doubt in my mind that if explosives were confined within the proper limits and the work carefully carried on, that no damage should have resulted to buildings.” Hence, although it be conceded that the question put to the witness was too broad, the answer given in response to it relative to the proper confinement of the explosives was clearly competent evidence upon the precise question the jury had to decide. The third assignment is overruled. It would have been error to instruct the jury that there was no evidence of negligence on the part of the defendant. “ When the thing which causes the injury is shown to be, under the management of the defendants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care: ” Shearman & Redfield on Negligence, secs. 59, 60, quoted with approval in Shafer v. Lacock, 168 Pa. 497. See also Sopherstein v. Bertels, 178 Pa. 401; Valentine v. Coburn, 10 Pa. Superior Ct. 453-457. As we have already shown in discussing the third assignment there was evidence which would bring the case within this principle, and there was in addition evidence that the concussions were extraordinary and that after the work had progressed the charges were reduced in size one half. It was not proved nor is it matter of common knowledge, that it is the usage of those in the business to use the same sized charge, to confine it in the same way, and to set off at one blast the same number of charges, without regard to the nature of the soil, the depth from the surface and the effect on adjacent buildings. [248] Blasting is, under the evidence in this case, an ordinary and usual mode of displacing rock in the prosecution of work of this kind. It was therefore not a negligent, although a dangerous, method. But, manifestly, the precaution that ought to be taken in the use of it must vary with the circumstances. From the nature of the case the care that would be required in deep mining where there is no danger to adjacent or overlying properties belonging to other persons is not the measure of care which ordinary prudence would dictate in excavations being made in the streets of a thickly populated city. It was for the jury to say, upon a view of all the evidence, whether the injuries to the plaintiff’s property were the unavoidable consequence of the nonnegligent use of a lawful and usual method of tunneling, or were caused by an omission to take the precautions in the use of that method that in the circumstances ordinary prudence would dictate. See Eardley v. Keeling, 10 Pa. Superior Ct. 339. This question was submitted to the jury in a clear, impartial and adequate charge, and we find no cause for reversal in the admission of evidence. Therefore, the judgment is affirmed.