Blackwell v. Lynchburg & D. R. Co

• Decision Date: 01 November 1892
• Court: North Carolina Supreme Court
• Parties: BLACKWELL. v. LYNCHBURG & D. R. CO. et al.

16 S.E. 12

111 N.C. 151

BLACKWELL.

v.LYNCHBURG & D. R. CO. et al.

Supreme Court of North Carolina.

Nov. 1, 1892.

Negligence —Issues—Blasting Rock—Railroad Right of Wat — Incident to Easement — Instructions—Harmless Error—Damages.

1. In an action against a contractor engaged in constructing a railroad, for the death of plaintiff's intestate caused by defendants' negligence in blasting rock, it is not error to refuse to submit to the jury the issue as to whether death was the result of accident, where the court submits the issues of killing by negligence, and whether deceased contributed to the injury, since the view of the law contended for in the issue refused could be presented to the jury, under the issues submitted, by pertinent instructions.

2. In such case it is not error to submit a single issue involving the question whether the injury was caused by defendants' negligence, with an inquiry as to damages, although by modifying the one, and adding one or more others, the jury might comprehend their duty more clearly.

3. Deceased was struck on the head by a rock when near his dwelling, situated some 200 yards from a cut on the railroad's right of way, where defendants were engaged in blasting rock. Rock had been thrown in the same vicinity by blasting previous to the time of the accident. Held, that defendants or their employes, in the exercise of ordinary care, ought to have known of such facts, and the danger to which deceased was exposed.

4. Where defendants knew, or ought to have known, of such facts, it was negligence not to take proper precaution to guard against danger to deceased.

5. Where it appeared that the blasting was done in a deep cut, so situated that covering could have been easily constructed so as to protect intestate against danger, it was negligence not to provide such structure.

6. If it was not practicable to prevent throwing stones into intestate's yard, it was incumbent on defendants to see that he had actual and timely notice before firing the blast.

7. Where the court leaves the liability of defendants to depend on actual knowledge by them of the existing danger, defendants have no reason to complain.

8. Defendants cannot complain that the court embodied in the charge, as an abstract proposition, what is known as the "rule of the prudent man" in response to its requests, where, in specific instructions, the court cor rectly applies the law of negligence and contributory negligence to the facts of the case.

9. Where the jury find defendants were in fault in not giving timely notice of the blast, or in failing to construct a covering, it is immaterial whether or not deceased took refuge in a safe place.

10. In such case it is sufficient if he made an effort to protect himself.

11. In such case it is not error to instruct the jury that a man's net earnings per annum are his pecuniary value to his family, and in estimating these you may consider the age, health, and occupation of deceased.

12. In such case it is not error to give a summary of the contentions of the parties, and to mention the fact of killing, as the point of departure in enumerating plaintiff's contention, and in giving a summary of the testimony relied on by him.

13. The right to throw stones by blasting, so as to endanger the lives of adjacent owners of land engaged in their domestic duties in and around their dwellings 200 yards or more distant, does not pass with a railroad right of way, as a necessary incident to the easement.

14. The action of the court in submitting questions to the jury that were not properly within their province cannot be assigned as error, where it does not appear that the complaining party is injured thereby.

Appeal from superior court, Person county; Win3ton, Judge.

Action by Alex. Blackwell, as administrator of Reuben Blackwell, against the Lynchburg & Durham Railroad Company and E. S, Moorman & Co., contractors engaged in constructing defendant's road, to recover damages for the death of plaintiff's intestate caused by the negligence of defendants. From a judgment for plaintiff against defendants Moorman & Co., the latter appeal. Affirmed.

Reuben Blackwell resided with his family about 200 yards from a cut on the right of way of defendant railroad company, in which Moorman & Co., as constructing contractors, were engaged in blasting rock. At the time of the accident Blackwell had just been at his well, and was going to the house on the opposite side from the railroad cut. A rock thrown by a blast at the cut struck deceased on the head, killing him. The work at the cut had been progressing some time, and there was evidence that the blasts had previously thrown rock into deceased's yard, and that it had been the custom of defendants to give notice to the Black wells when a blast was going to be shot, and that no notice was given of the blast that caused the accident. The other facts appear in defendants' bill of exceptions, as follows:

"'No one is responsible for injuries resulting from unavoidable accident while engaged in a lawful business; that is to say, if the accident occurred not by the negligence or willful act of another, as the court has charged you. The measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interest were to be affected and the whole risk run were his own. Now, let us see what the plaintiff relies on in this action to make out a case of negligence. He relies on the fact of death. To this defendants except, as thecourt falls to state that this fact does not determine whether there was negligence or not. He then contends that these additional facts and circumstances (if believed by you) make out a case of negligence, to wit, that the defendants or their agents knew that the blast before the killing had thrown rock on the house of the deceased and in his yard; that there were a number of houses in the neighborhood of the blasting that were occupied by human beings; that a highly explosive blasting powder was used; that the same was put in the seams of the rocks; that the back of the rock was hard, and the surface soft, and hence blown a longdistance; that no covering was placed on the blast; that the time of the blasting was so late that the deceased could not see how to protect himself from falling stones; and that the blast was about to take place or that the same was over. To this the defendants reply that the plaintiff has not established these things, or any of them, and, besides, that they have established the facts that they had skillful, prudentment to do the blasting; that the powder was as safe as they could use, and that they could not remove the rocks except by blasting; that the seams in the rock were as safe as a regular drilled pocket, and the usual way of loading; that the blast was smaller than usual, and not dangerous; that the blast did not take place after dark, or the usual working hour, and that both general notice of "Fire, " which the defendants knew meant a blast was about to occur, was screamed so loud that the deceased did and could hear it, and, besides, actual notice was given to the deceased of the impending blast; that the widow admitted to several parties the next day that the deceased did hear the cry; that actual notice was given that the blast was over. Now, you are the judge of the facts. If you answer the issue, "No, " you need not answer the other issues; but if you answer, "Yes, " you will then inquire, " Did the plaintiff contribute to his own injury?" Although the defendants may have been guilty of negligence, if the plaintiff's intestate was guilty of contributing negligence, he would not be entitled to recover any damage. If the injury was the direct result of the plaintiff's want of due care, then the loss is the result of his own negligence. He is said to be guilty of contributory negligence. If the defendants had previously thrown rock from their place of blasting to and on the house and in the yard of the deceased, and knew that the natural result of the blasting was to throw rock there, and where the deceased and his family were likely to be and had a right to be, and the defendants thereafter fired off a blast as theretofore, which caused the death of the plaintiff's intestate, and did not give warning to the deceased of the impending blast, then the court charges you that this would be negligence, '—to all of which defendants except, as no such phase of the case is presented by the testimony, as Garbee and Carson both testify that they had no knowledge that any rock had been thrown into the yard or upon the house and no reason to expect from the light charge of powder used that a rock would go that distance, and this is confirmed by the expert testimony.

"'If the deceased knew what was meant by the cry of "Fire!" and heard the same when it was given, this would be sufficient notice to him that a blast was imminent; and if he heard the witness call to him, " Fire in the mountain!" and knew what was thereby meant, and responded, "All right, " this would be sufficient notice. The court charges you that if one uses in his business any dangerous combustible, such as dynamite or blasting powder, it is his duty to acquaint himself fully with the peculiarities and characteristics of the same, and to employ careful and skillful men to handle the same, and to protect the public who live near by, or who pass by on the highway or otherwise, from injury when the combustibleis to be exploded. If the defendants used such means to confine said explosive, and employed such men to handle the same, and in all respects conducted themselves with reference to the cause like a man of care and prudence would have done under like circumstances, then there was no negligence in this respect.' To the above, 'if the defendants used such means to confine said explosives, ' defendants except, and insist that in this connection the court should...