Aycock v. N.C. St. Louis Ry. Co. , 4 Tenn. App. 655 ( 1927 )

ON PETITION FOR REHEARING. On a former day of the present term an opinion was handed down by this court directing that the judgments of the trial court in respect to the question of the liability of the defendant Railway Company to the several plaintiffs for damages to the real property of the plaintiffs, respectively, and for the costs heretofore accrued in the trial court, be affirmed, but (following the practice approved in the case of Perkins v. Brown,132 Tenn. 294, 300, 177 S.W. 158) that the assessments of damages by the jury, and the judgments of the court thereon, be set aside and that the four causes brought up in one record under the above style be remanded to the circuit court of Marion county for the assessment of damages by a jury under the direction of the court.

The defendant Railway Company has filed a petition for a rehearing, and in the opening thereof it is said that the sole purpose of the petition is to ask this court "to rule upon certain questions which were not discussed or definitely passed upon in the opinion heretofore entered."

(1) In our former opinion we overruled the first seven assignments of error of the defendant Railway Company for the reason that "a showing of negligence is not essential to the liability of a party who uses the dangerous agency of powerful explosives in such way that the proximate result thereof is injury to the property of another, although the injuries result from concussion and vibration of the earth and air, without a physical invasion of the premises of the injured party."

It is said in the petition that in thus ruling we ignored the contention made through some of the aforesaid seven assignments of error that the injuries to the property of the respective plaintiffs were not the proximate result of the blasting done by the defendant, unless the injuries could have been foreseen or reasonably anticipated as the probable result of the blasting.

Although not specifically mentioned in our former opinion, this contention was not overlooked in our consideration of the assignments of error. We think that, in making this contention, the defendant's able counsel fail to observe the distinction between proof that an act (such as blasting) was the proximate cause of injuries to the property of another, and proof that the negligence of the actor was the proximate cause of such injuries.

If it must be proved that an act was negligently done in order to fix liability for resulting injury upon one against whom action is brought, and such negligence appears, it must also appear, as a condition of liability, that such negligence was the proximate cause of the injury, and, unless the injury could have been foreseen or reasonably anticipated as the probable result of the negligent act, such negligence was not, in a legal sense, the proximate cause of the injury.

But if proof of negligence is not essential to defendant's liability for injuries to property which resulted directly and immediately from the blasting done by the defendant, it is not material to inquire whether such injuries could have been foreseen or reasonably anticipated as the probable result of such blasting. It is enough to know that the defendant did the blasting and, as a direct result thereof, the property of the plaintiffs was injured. One who uses the dangerous agency of powerful explosives on his own property, or on property under his control, in such way as to injure the property of another will not be heard to say that such injury could not have been reasonably anticipated as the probable result of such act. The principle applicable is expressed in the maxim, sic utere tuo ut non alienum laedas. In consonance with this maxim, "if a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril, and is liable for the consequences if it escapes and does injury to his neighbor. . . . It seems but reasonable and just that the neighbor who has brought something on his own property, which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property." Broom's Legal Maxims, pp. 364, 372.

(2) In our former opinion we held that "the true rule for measuring the damages which plaintiffs were entitled to recover was the difference between the value of the premises immediately prior to the injury and the value immediately after the injury (in other words, the depreciation in value resulting from the injury inflicted by the defendant), provided the cost of restoration was more than the depreciation in value; but if the reasonable cost of repairing the injury was less than the depreciation in value, then the cost of repair was the lawful measure of damages."

It is said in the petition that, under the rule just stated, there was no proof in the record upon which the jury could have found a verdict for more than nominal damages; that "proof of damages is just as much a part of plaintiffs' case as proof of liability;" that "if a plaintiff mistakes the measure of damages and offers no evidence which is applicable to the correct measure of damages" . . . "the trial judge should instruct the jury to award nominal damages," and that "there was no evidence upon which the jury could have awarded substantial damages if they had been correctly charged by the trial court."

The contention of the petitioner is that instead of remanding the cases for another assessment of damages by a jury, this court should have rendered a judgment in favor of each of the plaintiffs and against the defendant for nominal damages and costs.

We held in our former opinion that "there is evidence in the record before us from which it can be seen that each of the plaintiffs suffered substantial damages from the causes set forth in the respective declarations, and that it was, therefore, proper for the court to refuse to charge the jury, as requested by defendant, that, under the evidence, they could not return a verdict in favor of either of the plaintiffs for more than nominal damages."

The word "damages," where it first appears in the last quotation above, should have been damage — the singular not the plural.

The word "damages," in legal parlance, means the indemnity recoverable by a person who has sustained an injury either in his person, property, or relative rights, through the act or default of another. Collins v. Railroad, 9 Heisk., 841, 850.

In Webster's New International Dictionary (1925) the word "damage" is defined as "loss or detriment due to injury; injury or harm to person, property, or reputation." And the plural (damages) is defined as (in law) "the estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by a violation of legal right."

It is also there said that "damages are either substantial or nominal, according to whether there has been actual or merely nominal loss." See, also, 2 Words and Phrases Judicially Defined (1 Ed.), p. 1812 et seq., for judicial definitions of "damage" and "damages."

The legal conception of "nominal damages" is those damages which are given when the legal right of a party is infringed, but no appreciable loss or injury is suffered. 5 Words and Phrases, (1 Ed.), p. 4814 et seq.

It is apparent to any person of common knowledge and powers of observation that the plaintiffs necessarily suffered substantial loss, or damage, as the result of injuries to their property such as those inflicted by the blasting done by defendant, as described in the declarations and shown by the proof in these cases; and we cannot agree that, in this situation, we should reduce the plaintiffs judgments to nominal damages rather than remand the cases to the circuit court for an assessment of damages by a jury under proper instructions from the court.

The case of Hurley Son v. Buchi, 10 Lea, 346, was a suit to recover damages for a breach of a contract for the sale of some "Early Rose" potatoes for seeding purposes. The plaintiff, Buchi, obtained a judgment, and the defendants, Hurley and Son, appealed. The Supreme Court held (1) that the judgment was erroneous, in that, it was based upon an incorrect measure of damages; (2) that the record contained no evidence by which the amount of the damages could be properly measured, and (3) the judgment should be reversed and the case remanded for a new trial. The court said: "The present aspect of this case is such as that a final judgment cannot be rendered, so as to obtain the justice of the case, without evidence as to the relative value of the articles contracted for and those delivered."

(3) We held, in effect, that plaintiff Aycock was not entitled to a judgment for any sum on account of alleged damage to his merchandise, because it was impossible, on the evidence, to segregate the damage to his merchandise caused by defendant's blasting operations from damage caused by water for which defendant was not responsible. It was also clear from the evidence of plaintiff Aycock himself (although not expressly stated in our former opinion) that proof of such segregation was impossible, and we held that Aycock was not entitled to a judgment on account of damage to his merchandise, and that the trial court should have instructed the jury accordingly, as specially requested by defendant.

But we see no reason for the entry of "a judgment for nominal damages in favor of plaintiff Aycock so far as the allegations relating to personal property are concerned," as suggested in the petition. Aycock did not bring a separate suit for damages to his merchandise, nor even insert a count in his declaration separate from the count on the damage to his real property. He brought one suit, in a single count, for injuries to his storehouse and its contents, but failed in his proof with respect to damage to the contents of the storehouse. In this situation, we see no occasion for the entry of a judgment for nominal damages.

(4) Petitioner is correct in the assumption that the phrase "reasonable cost of repairing the injury," as used in our former opinion, did not include repairs to the building which were needed before the blasting.

With the foregoing explanations and comments, we adhere to our former opinion, and the defendant's petition for a rehearing is denied and dismissed at the cost of the petitioner.

Crownover and DeWitt, JJ., concur.