#### NEWLAND SPARKS and Wife, ELLA SPARKS, by Her Next Friend, G. C. WILLIS, v. TENNESSEE MINERAL PRODUCTS CORPORATION, and ELLA SPARKS, by Her Next Friend, G. C. WILLIS, v. TENNESSEE MINERAL PRODUCTS CORPORATION.

(Filed 13 October, 1937.)

1. Negligence §§ 3, 19a — Evidence held sufficient for jury on issue of negligence in mining operations.

Evidence that defendant mining company’s agent discovered that dynamite had been put in a blasting hole without his knowledge or direction, and that without investigating the other blasting holes that had been drilled, he further loaded, wired, and fired them, without notice to nearby property owners, and that the -explosion therefrom was exceptionally violent and caused large rock to be thrown through the roof of plaintiffs’ house, *is held*sufficient to be submitted to the jury on the issue of defendant’s negligence.

2. Negligence § 3—

The operator of a mine is liable for damage caused by negligence in the use of unsafe or unnecessarily violent explosive material, or by the careless management of materials in common use.

3. Negligence §§ 3, 18—

In an action to recover for damage caused by mining operations, the ■ evidence may render it competent and material for the jury to consider whether it was defendant’s custom to give notice before setting off a blast, and whether such notice was given before the explosion causing injury.

4. Damages § 1—

While ordinarily fright and nervousness alone may not be made an element of damage, if such fright and nervousness is caused by defendant’s negligence, and results in impairment of health and loss of bodily power, the injury is a proper subject of compensatory damages.

Appeal by plaintiffs from *Clement, J.,*at July Term, 1937, of Mitchell.

Reversed.

These two consolidated actions were instituted to recover damages impersonal injuries to the plaintiff Ella Sparks, and for property damage *212to tbe bouse of Ella Sparks and ber busband, Newland Sparks, resulting from tbe alleged negligent manner in wbicb tbe defendant carries on its blasting operations in mining for feldspar. From tbe judgment of nonsuit entered at tbe conclusion of all tbe testimony, plaintiffs appealed.

*Geo. M. Pritchard, M. A. James, Geo. L. Greene, and Chas. Hutchins for plaintiffs, appellants.*

*Walter 0. Berry, McBee & McBee, and Walter Hoyle for defendant, appellee.*

BaeNiiill, J.

Tbe evidence, viewed in tbe light most favorable to tbe plaintiffs, tends to sbow that when tbe defendant’s blasting in connection witb its mining operations is carried on in a careful and workmanlike manner it would only throw small gravel and small rock at short distances, never as far as to tbe residence of tbe plaintiffs, and that tbe noise from tbe blast was not such as to disturb tbe plaintiffs; that on tbe day in question there was an unusually loud and violent explosion caused by tbe blasting of tbe defendant; that this blasting burled rock through tbe roof, walls, and windows of tbe bouse and into tbe kitchen of plaintiffs; that tbe *feme*plaintiff was then in ber kitchen; that she suffered terrible shock and injury' to her nerves, resulting in loss of weight, nervousness, periodical confinement in bed, and other ailments; that tbe defendant ordinarily gave notice to tbe plaintiffs and others prior to blasting, but that on this occasion it failed to give any notice to these plaintiffs; that about 28 days prior- to tbe blasting in controversy tbe defendant’s employees bad drilled seven deep boles and thirty dobie boles; that tbe boles ranged from seven inches to ten feet deep; that on tbe day of tbe blasting defendant’s employees ascertained that tbe gunny sacks put in tbe boles when drilled bad been removed and tbe boles bad been filled witb rocks, sticks, steel, and other debris; that defendant’s agent in charge of blasting began to unstop tbe boles; that in so doing be located one-balf joint of dynamite in one of tbe boles, wbicb was not put there by him or witb bis knowledge; that when be found tbe dynamite be did no more work whatsoever towards cleaning. out tbe boles, because be became frightened. He went ahead and loaded them and put from one-fourth joint to one-balf joint in ten dobie boles and one-balf joint in tbe eight-foot bole, wbicb bad been cleared out a distance of from 18 inches to four feet; that thereupon tbe ten dobie boles and the large bole were connected to tbe lead wire and “fired”; that tbe explosion wbicb resulted was out of proportion to tbe quantity of dynamite put in tbe boles by tbe blaster.

It appears from this testimony that tbe blast in question was unusually violent and out of tbe ordinary, and that it threw rocks a distance of *213125 feet over, across, and upon the house of the plaintiffs, doing damage to the house and frightening the *feme*plaintiff to such an extent that she has been more or less incapacitated since. It also tends to show that the agent of the defendant discovered that dynamite had been put in the blasting holes without his knowledge or direction, and that notwithstanding such information he abandoned further effort to clear out the holes or to ascertain to what extent the holes had been loaded with dynamite by some other person; that he, having received warning from his discovery, and having knowledge that the holes had been tampered with and dynamite put therein, proceeded to further load the holes and to wire and fire them without first ascertaining to what extent, if any, the holes had already been loaded with dynamite. In that connection defendant’s witness testified: “I didn’t clear the 8-foot hole clean because there was in it rock and dirt and sticks and I never got it cleaned out and I couldn’t tell you what was in it down there, only there was bound to have been some explosive. I don’t know what was in that hole, but I found enough to be careful. It kind of excited me; you see this one hole was actually loaded and nobody knew about it.. Dobie holes are more dangerous to scatter little things than the holes drilled and loaded deep. They make little damage. A big damage is like I tell you, you have to throw big rocks to go through a house and you have got to have more than dobies shooting a large hole in a house.”

This evidence was sufficient to be submitted to the jury upon the question of defendant’s negligence. "Where there is testimony tending to show that injuries done to the adjacent land, or the buildings on it, were due to the use of unsafe or unnecessarily violent explosive material, or were caused by the careless management of the materials in common use, and also contradictory evidence, it is for the jury t.o find the facts upon which the question of negligence depends. Where a human being is killed or injured at his dwelling on his own land by a blast on the right of way, condemned out of the same tract, in addition to passing upon the questions whether proper material was used and handled with skill, the testimony may make it material for the jury to determine whether the agents of the corporation had been accustomed to give the injured party a signal before igniting the powder, and, if so, whether such notice was given before the explosion which caused the injury. *Blackwell v. R. R.,*111 N. C., 151, and cases therein cited.

The fact that the *feme*plaintiff was not actually struck by one of the flying rocks does not necessarily preclude recovery. *Wiggins v. R. R.,*171 N. C., 773.

While fright and nervousness alone, unaccompanied or followed by physical injury, do not constitute an element of damages, if this fright and nervousness is a natural and direct result of the negligent act of the *214defendant and naturally and directly causes an impairment of health, or loss of bodily power, then this would constitute an element of injury to be considered by the jury. *Kimberly v. Howland,*143 N. C., 398; *Kirby v. Stores Corp.,*210 N. C., 808.

The judgment of nonsuit is Reversed.