Smith v. Day

• Decision Date: 05 February 1900
• Docket Number: 497.
• Citation: 100 F. 244
• Parties: SMITH v. DAY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F. 244

SMITH v. DAY et al.

No. 497.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

G. W Allen and A. S. Bennett, for plaintiff in error.

John M Gearin, for defendants in error.

ROSS Circuit Judge.

At the time of the injury for which the plaintiff in error brought this action, the defendants J. G. & I. N. Day were engaged as contractors for the United States, in making rock excavations for the locks then in course of construction at the point on the Columbia river known as the 'Cascade Locks.' Their work was being carried on within the boundaries of the tract of land that had been theretofore acquired by the government by condemnation proceedings for the purposes of the work then under construction. Across this tract congress had, by joint resolution, authorized the state of Oregon to construct, maintain, and operate a portage railroad, and to use in the construction of the same, and in the operation thereof, the government roads upon the land provided that such occupation and use should not interfere with the government works at the Cascades, and should be under such restrictions and regulations as the secretary of war should prescribe. This grant the state of Oregon exercised and enjoyed by building a portage railway, and operating the same, through its state railway commission, for the transfer, in part, of passengers from the boats plying on the river above and below the locks. The railroad so constructed had afterwards to be given up by the state railway commission, after which the commission was allowed by the United States engineer in charge of the government work, and by the contractors, Day, to use the tracks which were built by the government for use during the construction of the work, and which tracks were turned over to the defendants, Day, when they took charge of it. Upon the execution of the contract between the government and the defendants, Day, they were put in possession of the government property, and they had been engaged in the prosecution of the work for several years when the accident complained of occurred. They had a large force of men employed, and their practice was to fire off blasts at the noon hour, after the workmen had left their work for dinner, and in the evening, after the time arrived for stopping work for the day. The blasting at the point in question could only be done at the low stage of the water of the river, which continued only from the early part of November to the early part of January. At the time of the accident the plaintiff was a passenger of the Dalles, Portland & Astoria Navigation Company, en route from The Dallas to Portland. Upon arriving at the upper lock he went, with other passengers, by means of the portage railway, to the lower wharf on the government reserve, near which point the work of blasting was being done. Upon reaching the lower wharf he went on board the boat of the navigation company, which lay alongside. When he got to the boat he heard blasting, and understood that it was being carried on. He went upon the boat, and was occupied for about 15 minutes in playing a game of cards, after which he talked to the steward of the boat for a few minutes, and then sat down in the forward cabin and went to sleep. While sitting there in that condition he was struck by a rock thrown by one of the blasts, which broke through the upper deck of the boat, resulting in his serious injury. The negligence alleged against the defendants, Day, in the complaint is their failure to give notice or warning to the plaintiff and others that they were about to do the blasting that inflicted the injury, and were negligent in setting off the blast at...