
    COMMERCIAL PRESS & WAREHOUSE COMPANY VS MORRIS FEITEL
    NO. 8819
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
    FEBRUARY 5, 1923.
    
      
    
   Opinion >7

WIH.IA1Í A. mi, Msi.

SO.alzj.tiff sues defendant for 1 amago» to the roofB of it» two certain cotton warehouses in this city contiguous to §he old. water-works plant, which defendant was demolishing by dynamite blasts. It is charged that because of defendant's negligence in the conduct of the said dynamite operations, bricks and other debris were blasted and thrown on to plaintiff's property, resulting into-perforation of the roofing on plaintiff’s buildizige, the repairing of which cost plaintiff $118.17, the amount herein sued for* Exceptions of vagueness and no cause of aotion were coupled with defendant's answer, in which he admits conducting blasting operations on the locality mentioned and also avers that he offered to repair the damage claimed, if any were suffered, but denied that said damage was due to ary negligence on his part. He further alleges that had he been permitted to repair the damage, same could have been done for a nominal amount and for very much less than the sum sued for, whidh he olaims is sxoossivs. It is also urged by suppleiBental answer that plaintiff failed to nut him in default before having the repairs made, This is an action ex delicto and such oontontlon is without merit. Defendant appeals from a judgment as prayed for.

ffe find no vagueness in the allegations of plaintiff’s petition. Defendant's counsel argues that the petition fails to support a cause of action in that nsgligenoe, though averred, la not specified sufficiently to charge defendant with definite acts of omission or commission by which liability could arias. Where one, to the prejudice of his neighbor, engages in operation or works of suoh a nature as might ordinarily result in damages to others, the manner of conducting suoh work is peculiarly within the knowledge of the operator and necessarily imposes on him the burden of proving, without feeing charged with specific acts, that through no negligence or fault of his has the damage arisen. Lykiardopaulo v. N.O. & C. R. light & power Co., 127 La., p. 310. There is abundance of authority to the effect that while the use of dynamite is not in itself an aot of negligenoe -per se. he who elects to^ employ the same as a matter of convenience in demolishing buildings in a populated district must respond to damages resulting from the use of dynamite or other explosive whether or not said damages were due to negligence on the part of the user. This doctrine is clearly stated in 25 C.J., P. 192, as follows:

"One lawfully engaged in blasting operations, is, according to the weight of authority, liable without regard to the question of whether or not he has been negligent, whereby his acts in casting rooks or other debris upon adjoining or neighboring premises or highways, he causes direct injury to property-* * *"

See also 34 L.R.A. (N.S.) P. 211, 212; 11 R.C.L. , Section 27, P. 673.

The City Engineer, one of defendant's own witnesses, has conclusively established that the blasting operations which caused the damage in this case were improperly or at least injudiciously conducted, and the sole question for determination now is the amount which should be allowed as reimbursement for the nedessary repairs, lío evidence of which this Court should take cognizanoe has been adduced at the trial in the lower Court to support defendant's contention that the extent of the repairs were unnecessary or that the charge therefor was excessive. There is positive proof that almost immediately after the work was ooiipleted, defendant was allowed to have the same inspected and was given an opportunity to pay the Mil rendered for the repair». This is all the consideration whioh could reasonably have been accorded him, and he having failed in the trial of this case to 'prove the unreasonableness of the price paid for the repairs, we are of the opinion that he has been justly taxed therefor in the judgment of the trial Court.

XT 18, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be and the same hereby is affirmed at defendant's costs in both oourts.

FEBRUARY 5, 1923

JUDGMENT AFFIRMED.  