Beauchamp v. Saginaw Min. Co.

• Decision Date: 27 February 1883
• Citation: 15 N.W. 65,50 Mich. 163
• Court: Michigan Supreme Court
• Parties: BEAUCHAMP v. SAGINAW MINING CO.

15 N.W. 65

50 Mich. 163

BEAUCHAMP v. SAGINAW MINING CO.

Supreme Court of Michigan

February 27, 1883

Where the evidence as to whether or not a sufficient warning was given by a mining company that it was about to blast is conflicting, it is the province of the jury to determine this question upon all the circumstances and surroundings of the case.

Where two companies, owning and working adjoining mines, have allowed their workmen to build dwellings on their lands near the mines and to pass back and forth to trade at a store built near the dividing line, and while so passing a workman is struck and injured by a stone from a blast in one of said mines, it makes no difference that the party injured is not walking on a public highway or is on the land of the other company, and that the company so blasting had permission to throw rocks over the land of such company in blasting and working their mine; and if in so blasting they did not use proper means and precautions to prevent injury to those passing over the adjoining lands, they are liable for such injury as may by reason of their negligence result.

The degree of care necessary depends upon the circumstances of each case and the position of the parties, and it is no defense that to use the proper care would cause an extra amount of labor or expense, or diminish the profits of a business; and whether the proper precautions were used is a question to be left to the jury.

If an original act was wrongful, and would naturally and in the ordinary course of events prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent.

Error to Menominee.

E.E. Osborn, for plaintiff.

G.W Hayden, for defendant and appellant.

MARSTON, J.

This was an action of trespass on the case brought to recover damages for the death of the intestate, caused by the alleged negligence of the defendant. To properly understand the questions raised a brief reference to the facts will be necessary. The Saginaw Company and the Stephenson Company were the owners of adjoining tracts of land upon which there was a vein of iron ore. These companies commenced mining upon their respective lands, and near to the division line, the defendant opening its mine within a very few feet of the line. These mines, at the time of the injury complained of were known and worked as open mines; that of the defendant being down about 35 feet below the surface of the ground. The Stephenson Company had given to its employes and others permission to erect and occupy dwelling-houses upon its land and the defendant had given like permission to its employes to build upon its land. Under such authority a number of houses had been erected at varying distances from the mines and the plaintiff, who was working for the Stephenson Company, had erected a dwelling upon its lands. With the permission of the last-named company, a building had been erected near the division line, and a stock of merchandise kept thereon for sale, and at this place the miners and their families did a good share of their trading.

The lands of these companies had not been fully cleared of their timber, there was no regularly laid out or opened street or highway across these lands, but there was a track or way across the Stephenson Company's lands used by the miners and others, and also used by parties going between their houses and the store referred to. On the sixteenth day of January, 1880, the plaintiff's son, then 16 years of age, had been to the store and was returning home, along the road referred to, when he was struck on the side of his head by a stone which seriously injured him, and from the effects of which it was claimed he died some months afterwards. When struck he was about 500 feet from the defendant's mine, and it was claimed that the stone that struck him came from the mine of the defendant, a blast having been fired at that time. The negligence charged in the declaration was, that the defendant did not protect or cover the place in which the blast was fired, and did not give any sufficient warning of the blast to be fired.

The principal matters of defense were, that the evidence did show that notice of the blast was given by the defendant; that it was not therefore guilty of negligence and upon this ground the case should have been taken from the jury; that such an open mine could not be covered when blasting and carried on profitably, therefore the defendant could be guilty of no negligence in not covering it; that death was not caused by the injury, but by specific or typical pneumonia; and they also offered to show that a mutual agreement was entered into between these companies, previous to the accident, by which each might in blasting throw rocks upon the land of the other, the mines being so near the division line that there was no means of preventing such a result. This evidence so offered was objected to and excluded. These are the main questions relied upon.

There was direct evidence in the case that a warning was given in the usual and customary manner before the blast was fired, and witnesses testified that they did not hear any warning although within hearing distance at the time. Under such circumstances while we might fairly suppose that a jury would believe testimony of a positive rather than that of a negative character, yet so many other considerations enter into the inquiry as to whether a sufficient warning was given or not, that it would be unsafe, as a general rule, for the court to withdraw such a question from the consideration of the jury. The relative positions of the several witnesses, the manner in which they were engaged at the time, their apparent interest or bias, their appearance upon the stand, these and other matters require attention and deliberation, and where the trial judge declines to take the case from the jury, the case should be an exceeding clear one that would justify this court in finding error. The question whether any and if so a sufficient notice was given was one of fact, upon which the evidence, though perhaps weak upon one side, was conflicting, thus bringing it clearly within the proper province of the jury to pass upon. If any error was committed by the jury, the remedy is not in this court, but in the court below upon a motion for a new trial, or to set aside the verdict.

The objections relating to the evidence offered and rejected; to the duty of the defendant to cover its mine when blasting, and to give sufficient warning, may be considered together.

Under the privileges extended by the Stephenson and defendant companies to their employers, the latter had a clear right to build their houses, and they, with the several members of their respective families, to travel in and upon the road in question in the usual and customary manner to and from the store and wherever their business may have required them to go. The fact that the way in question was not a legally laid out or opened public highway is of no importance in the present case. With the permission of the owners of the land, the people had been in the habit of using this as they would a public highway, and this was known to the defendant.

The deceased was not therefore a trespasser, he was not in the wrong, at the time he received the injury, but was traveling on the road in question on business and as a matter of right. There is no middle ground in such a case, dependent upon the nature of the highway. If the way had been a public highway or a crowded thoroughfare, greater care might have been required of the defendant, but the rights of travelers thereon in either case would be the same. They would be rightfully there and could be charged with no illegality or negligence in traveling thereon upon business or pleasure. The iujury cannot therefore be traced to any breach of the law or wrong on the part of the deceased, but solely to the fault of the defendant, if either was in fault. It was very strongly insisted upon in this court, that counsel in the court below, claimed that the defendant had no right whatever to throw rocks from blasts in its mine upon the lands of the Stephenson Company, that in so doing it was a trespasser, and that if a stone from its blast struck deceased while upon the Stephenson lands, defendant would be liable as a trespasser at all events, regardless of the question of negligence, citing in support thereof Hay v. Cohoes, 2 N.Y. 159...