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Drumm v. Simer

Supreme Court of Arizona

April 25, 1949

DRUMM
v.
SIMER

Appeal from Superior Court, Navajo County; Don T. Udall, Judge.

Reversed.

Guy Axline, of Holbrook, and Stahl & Murphy, of Phoenix, for appellant.

C. D. McCauley, of Winslow, for appellee.

De Concini, Justice. Udall, Stanford, and Phelps, JJ., concur. LaPrade, C. J., not participating.

OPINION

De Concini, Justice.

[68 Ariz. 320] Appellee Clay Simer, plaintiff below, brought this action against A. B. Drumm, doing business as Silver State Construction Co. The case was tried to the court without the aid of a jury, at the conclusion of which both parties requested findings of fact and such findings were made and judgment entered for plaintiff for the sum of $ 607.50, from which defendant appeals.

The facts are as follows: Plaintiff owned a dwelling in the city of Winslow which was completed in May, 1942. In 1944, defendant

Page 593

entered into a contract with the Civil Aeronautics Authority an agency of the United States Government, to do certain construction work at the Window Airport as a war emergency measure. While in the process of construction defendant caused a great deal of dynamite blasting to be done during the months of July to December, 1944. Plaintiff alleged, and his wife testified, that on October 9, 1944, at about 5:00 p. m. defendant caused a blast to be set off that shook plaintiff's house, causing cracks in the plaster, the foundation, and the garage floor. Plaintiff alleged two specific acts of negligence, to wit: "by the acts of simultaneously setting off an excessive number of explosions (and) an excessive amount of explosive material in such close proximity to the City of Winslow and plaintiff's premises." The italicized allegation was added at the close of plaintiff's case as a trial amendment.

Plaintiff's house was approximately one and one-quarter miles north of defendant's nearest blasting operation and about two and one-half miles north of his other blasting work. The evidence conclusively established that no damage was done to nearby buildings such as the airport, hangar and terminals, the Country Club building, and some Santa Fe Railway buildings about one-half mile from the blasting. These buildings were all on a direct air-line between [68 Ariz. 321] plaintiff's dwelling and the place where the blasting was carried on.

There was no evidence of the alleged negligence on the part of the defendant. The court did find:

"No. IV. That defendant made no investigation to determine extent of the solid rock on which blasting operations were performed or to determine what effect, if any, said blasting operations would produce on property surrounding Winslow airport, including plaintiff's property."

Plaintiff relies on an inference of negligence against defendant as the result of that "finding." Such a theory is not tenable because there was no evidence that such lack of investigation constituted negligence. Actually the evidence was to the contrary. Had such an investigation been made the only reasonable conclusion would have been that because of the one and one-quarter mile distance between plaintiff's house and defendant's closest blasting operation, and the conditions of ...


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