Cates v. Latta

• Decision Date: 05 November 1895
• Citation: 117 N.C. 189,23 S.E. 173
• Court: North Carolina Supreme Court
• Parties: CATES v. LATTA et al.

23 S.E. 173

117 N.C. 189

CATES

v.LATTA et al.

Supreme Court of North Carolina.

Nov. 5, 1895.

Negligence—Blasting.

Plaintiff, while walking along a public road about dusk, was struck and injured by a rock thrown from G.'s mill race, over 100 yards away, where blasting was being done by an employe of G. No means were taken to restrict the flight of rock within safe limits, nor was any danger notice given. Held, that G. and his servant were liable. Blackwell v. Railroad Co., 16 S. E. 12, 111 N. C. 151, followed.

Appeal from superior court, Durham county; Greene, Judge.

Action by Rebecca I. Cates against J. O. Latta and another to recover for injuries alleged to have been caused by defendants' negligence. From a judgment for plaintiff, defendants appeal. Affirmed.

Shepherd, Manning & Foushee, for appellants.

W. A. Guthrie and Boone, Merritt & Bryant, for appellee.

FAIRCLOTH, C. J. The defendant Latta, as the employe of the defendant Geer, was engaged in blasting rock in his mill race, near the public county road, where it crosses the river Eno, and the plaintiff was walking along said road when the injury occurred, about dusk, about 100 or 150 yards from the dam. When the blast went off, a five-pound piece of rock struck the plaintiff, and broke her arm. They were each engaged in a lawful business, and the question of negligence depends upon the manner or method in which they exercised their rights. The burden was upon the plaintiff to prove to the satisfaction of the jury that she was injured, and that she was injured by the negligence of the defendants; and, if contributory negligence is relied upon as a defense in the answer, the burden of proving it to the satisfaction of the jury is upon the party pleading it Acts 1887, c. 33.

The issues submitted were: (1) "Was the plaintiff injured by the negligence of the defendants, or either of them? Ans. Yes." (3) "Did the plaintiff, by her own negligence, contribute to her injury? Ans. No." His honor instructed the jury that if the defendant set off the blast when it was dusky dark, without giving any warning, this would be such negligence on his part as would make the defendants liable. There was conflicting evidence as to whether the defendants did give an alarm, but from the verdict on the first issue, under the above instruction, we are to take it that no danger notice was given, and that was assumed as a fact on the argument before us. Under the facts and circumstances of this case, we think it was the duty...