Tennessee Coal, Iron R. Co. v. Hartline , 244 Ala. 116 ( 1943 )

The sufficiency of the complaint is, in my opinion, fully sustained by the following authorities: Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Louisville Nashville R. Co. v. Hawkins, 92 Ala. 241, 9 So. 271; Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245; 39 American Juris. 234.

There is evidence tending to show the property in question, owned by defendant, remained in its complete control, and that uncontrolled blastings (fifty or seventy-five in number), had been continued for a period of twelve months. The testimony of the witness Knight discloses these numerous blastings, and their dangerous character; and that of defendant's engineer is to the effect that if such blastings occurred, he would have doubtless known of it. And, indeed, there is evidence tending to show regular inspection of the property by the engineering department of defendant company.

A consideration of the evidence leads to the conclusion therefore that it sufficed also for a reasonable inference by the jury that defendant had knowledge of this condition. And clearly enough it sufficed to show defendant should have had such knowledge by the exercise of reasonable diligence: the property was close to the downtown area of Birmingham and located in a rather populous part, surrounded by places of business of various kinds, and the jury might well imply the danger from such uncontrolled blastings to others using the streets and these places of business, was evident to a reasonable mind. Considering these facts in connection with those outlined in the majority opinion, I am persuaded the question of liability for the continuance of a public nuisance upon defendant's premises was properly submitted to the jury, and that the affirmative charge requested by defendant was refused without error. In my opinion, the following authorities suffice to sustain this view: Joyce on Nuisances, page 47; 39 Am.Jur. page 314; American Law Institute Restatement of the Law of Torts, Vol. II, page 987; 46 Corpus Juris page 745; Gray v. Boston Gas Light Co., 114 Mass. 149, 19 Am.Rep. 324; Southern R. Co. v. Kentucky, Ky. 101 S.W. 882, 12 L.R.A., N.S., 526; Fletcher v. Baltimore P. R. Co., 168 U.S. 135, 18 S.Ct. 35,42 L.Ed 411; Board of Chosen Freeholders of Hudson County v Woodcliff Land Co., 74 N.J.L. 355, 65 A. 844; Timlin v. Standard Oil Co., 126 N.Y. 514, 27 N.E. 786, 22 Am.St.Rep. 845; Montevallo Mining Co. v. Little, 208 Ala. 131, 93 So. 873.

My conclusion is no reversible error intervened, and that the judgment should stand affirmed. I therefore respectfully dissent.