Cary Bros. & Hannon v. Morrison

• Decision Date: 18 March 1904
• Docket Number: 1,928.
• Citation: 129 F. 177
• Parties: CARY BROS. & HANNON v. MORRISON.
• Court: U.S. Court of Appeals — Eighth Circuit

129 F. 177

CARY BROS. & HANNON v. MORRISON.

No. 1,928.

United States Court of Appeals, Eighth Circuit.

March 18, 1904

Syllabus by the Court

Blasting by the use of gunpowder or dynamite is an appropriate and justifiable mode of removing rock from the right of way of a railroad in order to bring it to grade, and a railroad company or its grading contractors may lawfully employ it with reasonable care.

While a contractor may lawfully use blasting with gunpowder or dynamite to remove rock in the right of way of a railroad company, he has no right by its use to throw rocks upon persons rightfully occupying or using neighboring property. Such an act is a trespass, and it is his duty to give such persons reasonable warning of coming explosions.

It is the duty of one who is lawfully using property near to that upon which another is legally engaged in blasting, and who is warned of a coming explosion, to use reasonable diligence to escape from danger on account of it; and a failure to exercise such care, which concurs in producing his injury waives his right of action for the trespass, and constitutes contributory negligence, which is fatal to his action for damages for the injury.

The question whether or not one is guilty of contributory negligence is ordinarily for the jury. It is only when the facts which condition the question are stipulated, or are established by testimony which is free from substantial conflict, and the inference from the facts is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it, that the question of contributory negligence may be lawfully withdrawn from the jury.

The defendants were lawfully engaged in blasting rock out of the right of way of a railroad company at a point about 150 feet from a river. The decedent was rightfully walking along the bank of the river a short distance below a point opposite the place of blasting, holding the prow of a ferryboat away from the bank with a pole, while the ferryman was walking ahead of him, pulling the boat up the stream, in the customary way preparatory to poling it across. The decedent had engaged his passage across the river upon the boat. The custom of the defendants was to send men out, shouting 'Fire,' at short intervals for a period of 12 or 15 minutes before exploding a charge of gunpowder or dynamite, and the charges had been so heavy that rocks had fallen all around the place where the decedent and the ferryboat were, and had broken limbs and stripped foliage of trees of the forest which intervened between the right of way and the river, and concealed the boatmen from those engaged in blasting, who were not aware of their presence before the explosion. The decedent had worked for the defendants, and knew these facts and this custom. Seven witnesses heard the cry of fire 12 to 15 minutes before the explosion. Three heard it from 2 to 5 minutes before. When the ferryman heard it, he shouted 'Don't shoot,' and he and the decedent continued to ascend the stream within 200 and 300 feet of the place of blasting. The ferryman heard it again, and answered it again and they continued up the river. The ferryman heard it a third time, answered again, the signal to explode the blast was given, the charge was fired, and a rock fell upon the decedent and killed him. The defendant's witnesses testified that they did not hear the cry 'Don't shoot.'

Held, the question whether or not the decedent was guilty of contributory negligence was for the jury.

G. B. Rose (U. M. Rose and W. E. Hemingway, on the brief), for plaintiffs in error.

Ira D. Oglesby (W. E. Atkinson and Geo. O. Patterson, on the brief), for defendant in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN Circuit Judge.

This writ of error questions the proceedings at the trial of an action for negligence brought by Mrs. T. Jane Morrison, the administratrix of the estate of W. L. Morrison, against Cary Bros. & Hannon, a partnership composed of the defendants below, which resulted in a judgment against the defendants for $6,000. In her complaint the plaintiff alleged that her husband, W. L. Morrison, was killed by a blow from a rock which was carelessly thrown from a blast by the defendants who were then engaged in grading the Little Rock & Ft. Smith Railroad. The defendants denied that they were guilty of negligence, and alleged that the injury and death of Morrison were caused by his own carelessness, in that he disregarded warnings that the explosion was about to occur, and refused or neglected to seek a less dangerous place. At the close of the trial the court, in effect, charged the jury that Morrison was free from negligence, and that, if they believed that the defendants were guilty of carelessness which caused his injuries and death, the plaintiff was entitled to a verdict. This instruction is challenged, and its consideration necessitates a review of the facts disclosed by the evidence at the trial, which were these: Cary Bros. & Hannon had been engaged at the place where the accident occurred in blasting heavy rocks out of the right of way of the Little Rock & Ft. Smith Railroad Company for about two weeks. At the place where they were at work the right of way ran east and west parallel to, and about 150 feet distant from, a river 1,200 feet wide. The surface of the ground along the right of way was higher than that of the river, and between them was a forest, which, with its foliage, made it impossible to see the river from the surface of the ground along the right of way, although there was testimony that it was visible from a pile of timber and brush some 20 to 90 feet distant from the explosion. On the bank of the river, and about 700 feet below and east of a point upon the river directly south of the place of the blasting, was a landing place for a ferry; and between these two points, and about 350 feet from the landing, was a mill. The country was sparsely populated, and there was but one house, aside from the mill, within 700 feet of the place of the fatal blast. The contractors had been using heavy charges of powder, and had thrown rocks in every direction, some of them 700 feet from the place of the explosion, but naturally many more had fallen nearer to the place of the blasting than at a greater distance. Between the place of the explosion and the river much foliage had been stripped from the trees, and their limbs had been broken by falling rocks. The custom of the defendants had been and was to send their employes out 12 or 15 minutes before a charge of powder was to be fired, shouting the word 'Fire' at short intervals, for the purpose of warning all persons in the vicinity of the coming explosion, so that they might retire out of danger. Morrison was a laborer, a farmer, and a minister, who earned annually about $100 by the first, about $300 by the second, and about $75 by the third occupation. He had been an employe of the defendants at the place of the explosion within two weeks before the accident occurred, had seen heavy charges of powder exploded, was aware of their effect, and knew how the warning of a coming blast was given, and all the facts which have been recited. The customary method of operating the ferryboat at this time was to tow it up the stream, so that the current would not carry it below the opposite landing, and then to pole it across the river. But the defendants' witnesses testified that they were not aware that the ferryboat ever came up along the bank in that way. At a time when the defendants had a charge of powder nearly ready for explosion, about 2 or 3 o'clock in the afternoon of October 5, 1902, Morrison came from the north to the landing place of the boat for the purpose of crossing the river upon it. When the boat was ready to cross the river, it was loaded with a team of mules, a wagon, and one Davis, the owner of the mules. Thereupon the ferryman walked up along the north bank of the river, and dragged the boat after him by means of a rope attached to it, while Morrison walked along the bank behind him, and pushed the prow of the boat away from the bank with a pole. When they had arrived at a point above the mill, but below a point opposite the place of the blasting, Davis heard the cry of fire, the ferryman shouted 'Don't shoot,' and they proceeded on their way up the river. After a short interval Davis again heard the shout 'Fire,' and the ferryman again cried 'Don't shoot,' while they continued on their way. And after another interval Davis again heard the cry of fire again, the ferryman again cried 'Don't shoot,' Davis heard the words 'All right,' the explosion occurred 'right then,' and a rock from the blast fell upon Morrison and killed him. The defendants' witnesses testified that they did not hear the cry 'Don't shoot,' did not know that Morrison and his companions were near their place of work, and that the words 'All right' were addressed to the operator of the battery, and constituted the signal for the explosion. The course of proceeding of the defendants and their employes up to this time had been this: About 12 or 15 minutes before the explosion, men had been sent out, crying 'Fire,' and they continued to repeat the cry at short intervals until the explosion occurred. One of the employes of the defendants stepped on some logs about 100 feet from the river, faced it, and shouted 'Fire.' After he had done this he walked 500 feet to the battery before the explosion. Seven witnesses testified that they heard the cry of fire 12 or 15 minutes before the explosion. Three witnesses only, and they were on the opposite side of the river, testified that they first heard the cry from 2 to 5 minutes before the explosion. The witness Hines testified that he was...