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Action for damages. Floyd Superior Court. Before Judge Scoggin.
1. An action against a contractor seeking damages arising out of an alleged trespass to the land, buildings and persons of plaintiffs, as the result of blasting for a State highway is not controlled by Code Ann. 95-1710 or by Code 95-1712. "A proceeding against a private contractor although based upon a cause of action 'originating on a highway' could be maintained without adherence to these provisions. We would not extend their meaning to include common law tort actions against parties other than a county and the State Highway Department simply because the alleged negligent act 'originated on a highway.' Nor would we do so merely because the cause of action arose from an eminent domain proceeding and originated on a highway." Woodside v. Fulton County, 223 Ga. 316, 325 (155 SE2d 404).
2. The action in the present case being one for trespass against realty seeking damages for injuries to a dwelling and personal injuries and discomfort, occasioned by vibrations of, and rocks being thrown into and upon, the dwelling as a result of blasting activities of the defendant in the construction of the State highway, there was no error in charging the jury, "You are not concerned with the question of whether or not the defendant in this case was negligent, but you are concerned with whether or not the blasting or explosions as complained of in the petition caused the damages complained of, and whether or not the defendant in that manner is liable." Brooks v. Ready Mix Concrete Co., 94 Ga. App. 791 (96 SE2d 213).
3. The motion for judgment notwithstanding the verdict, as amended, filed by the defendant appellant, sought the entry of a judgment for an amount less than that found by the jury, based solely on testimony of a witness estimating the cost of repairs to the dwelling of plaintiff. Even if we should concede that the cost of repairing the dwelling is the only damages allowable under the evidence, a judgment for the amount testified to, being opinion evidence, would not be demanded on a motion for judgment notwithstanding the verdict. See Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393).
4. The evidence authorizing a finding that, after repeated warnings, defendant continued the blasting over a period of several years with continuing damage to the dwelling of the plaintiffs and to the plaintiffs' health and comfort in the enjoyment of their property, the trial judge was authorized to submit to the jury the issue of punitive damages. See Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704, 713 (120 SE2d 636).
5. Appellant complains of the overruling of defendant's objection to the following question and answer of a doctor testifying about the injuries of one of the plaintiffs: "Q. What were your findings as a result of the skull and spine x-ray? A. The skull was normal and the cervical spine showed some straightening of the natural curve, which indicates muscle spasms. She had a moderate amount of disc disease or degeneration between the sixth and the seventh cervical vertebrae." The trial judge sustained the objection to the answer, with the exception of that portion stating the skull was normal. We find no reversible error in the admission of this evidence.
6. The trial court's definition of direct and circumstantial evidence was a correct one and there was no error, in the absence of a request, to charge "as to the rules governing the use of circumstantial evidence in order to support a claim or contention by the plaintiff."
8. All other enumerations of error on the appeal from the overruling of a motion for a new trial are either without merit or have been abandoned.
E. E. Moore, J. C. Daugherty, for appellees.
Peek, Whaley & Haldi, Glenville Haldi, James D. Maddox, for appellant.
Friday May 22 14:51 EDT

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