Kalajian v. Victor Celidonia, Inc.

The opinion of the court was delivered by Case, J. Plaintiffs sued defendant in the District Court of the Second Judicial District of the county of Bergen for damages alleged to have been inflicted upon plaintiffs’ building by blasting operations conducted by defendant on the adjoining premises. Trial was had before the court and a jury and resulted in a verdict for plaintiffs. Defendant, appealing from the judgment entered thereon, sets up as errors, first, the refusal of the court to nonsuit and, second-—■ comprehensive of the first—the refusal of the court to direct a verdict in favor of the defendant. Defendant’s argument on the appeal is built on the assumption that the damages suffered by plaintiffs were the result of concussion and relies, so far as concerns the decisions of this state, upon Simon v. Henry, 62 N. J. L. 486; 41 Atl. Rep. 692, wherein recovery was sought for damages caused by concussion and Mr. Justice Dixon said: “In Booth v. Rome, Watertown and Ogdensburg Railroad Co., 140 N. Y. 267, and in French v. Vix, 143 Id. 90, it was held that the temporary use of explosives in the blasting of rock, provided reasonable care be exercised, is lawful, and [165] damage resulting from concussion thereby produced is damnum absque injuria. We find no contrary decision.” Plaintiffs’ further contention is that defendant proved no negligence. In the instant case there is evidence that rocks were thrown by the explosions into plaintiffs’ house, passing through and breaking windows, thus doing measureable damage. Thompson v. Jannarone Contracting Co., 6 N. J. Mis. R. 320; 141 Atl. Rep. 25, held that the casting of rocks upon another’s land by blasting is a trespass and that, if unlawful in its own nature, it continues to be so, however carefully or skillfull}' it may be done. The complaint in the present action grounds, not in trespass, but in negligence, chiefly negligence in the employing of workmen and in the manner of discharging the blasts, and therefore does not quite come within the holding in Thompson v. Jannarone Contracting Co., supra, but the cited testimony is sufficient, we think, in conjunction with and in contradiction of testimony produced by the defendant as to the proper manner of doing the work and the way in which it actually was done to take the question of negligence to the jury, Whitla v. Ippolito, 102 N. J. L. 354; 131 Atl. Rep. 873. We find no error in the questioned rulings and therefore conclude that the judgment below should be affirmed.