Central of Georgia Ry. Co. v. Bernstein

• Decision Date: 28 March 1901
• Citation: 38 S.E. 394,113 Ga. 175
• Parties: CENTRAL OF GEORGIA RY. CO. v. BERNSTEIN.
• Court: Georgia Supreme Court

38 S.E. 394

113 Ga. 175

CENTRAL OF GEORGIA RY. CO. v. BERNSTEIN.

Supreme Court of Georgia

March 28, 1901

Syllabus by the Court.

1. Where the issue is whether a certain blast was made with due care, and it appears that this blast was part of a job of blasting lasting continuously for some days, it is proper to admit evidence tending to show that there was negligence in the manner in which the blasting was done at times before and after the particular blast under consideration.

2. In such case it was not error to charge that the jury night consider such evidence in determining the character of the particular blast in question.

3. A charge that, while in a given instance a permit should have been in writing, the party acting under an oral permit should not be "chargeable with laches," is not hurtful to such party as intimating that he had not complied with the law unless he had obtained a written permit.

4. Where one, in doing certain blasting within a city, injures property of another, the fact that the former has fully complied with the regulations of the city authorities as to the manner in which the blasting should be done will not relieve him of liability if the blasting was done without due care.

5. Where it does not appear that either party has suppressed evidence within his power to produce, it is error to charge the jury as follows: "It is the duty of parties bringing cases into court, whether plaintiff or defendant, to furnish the best evidence at their command, and to furnish witnesses cognizant of the facts. Parties can explain the reasons for not producing the witnesses. If not explained and not produced, the presumption is that they would not sustain the contention of the party."

6. To charge the jury, "You will consider the interest of the parties; consider the relationship as well as the employment as calculated to bias; whether it biased in this case,"--is not erroneous as intimating that "employment would necessarily bias a witness."

7. Solely because of the error dealt with in the fifth headnote a new trial is ordered.

Error from city court of Athens; Howell Cobb, Judge.

Action by J. S. Bernstein against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dessan Harris & Harris, for plaintiff in error.

H. C. Tuck, for defendant in error.

SIMMONS C.J.

An action was brought by Mrs. Bernstein against the Central of Georgia Railway Company. The petition alleged that the defendant's agents and employés, while engaged in constructing a warehouse for the defendant in the city of Athens, Ga., did certain blasting to prepare a site therefor; that this blasting was carried on for several days; that the blasting was done negligently, excessively large charges of dynamite being used without taking sufficient precautions to prevent injury to persons and property in the neighborhood; that plaintiff had a livery stable some 75 or 100 yards distant, and that a very large rock was blown up by the blasting and thrown upon the roof of the stable, penetrating the roof, and so wounding one of plaintiff's horses therein that he died a few weeks thereafter. It was further alleged that, before the time of the injury to the horse, plaintiff had notified the defendant's agents of the danger of blasting in such negligent manner. She further alleged that the injury was wholly due to the negligence of the defendant. The defendant denied all of the material allegations of the plaintiff's petition, and alleged that the injury to the horse was not caused by any negligence on the part of defendant, but was due to the plaintiff's own negligence. Upon the trial the plaintiff introduced evidence tending to sustain all of the allegations of the petition, while the defendant introduced evidence tending to show that the horse was not struck by the rock thrown up in blasting, but was injured by excessive work. Defendant also sought to show that its agents and employés were duly authorized by the city authorities to do the blasting, and that the same was done in a careful and proper manner. The jury found for the plaintiff, the defendant moved for a new trial, the judge overruled the motion, and the defendant excepted.

1. Several of the grounds of the motion for new trial complain of the admission of evidence as to the manner in which the agents and employés of the defendant carried on the work of blasting prior to and after the time of the alleged injury to the plaintiff's horse. This evidence was objected to on the ground that it was irrelevant and immaterial, and sought to prejudice defendant's case by proof of acts of negligence not connected with the particular act complained of. It appeared that the work of blasting was carried on for some two weeks, and that the plaintiff's horse was injured during that time. The evidence objected to tended to prove that before, after, and at the time of the injury the blasting was negligently done, and threw many rocks in all directions. Such of this evidence as related to the character of the work done before the time of the injury to the plaintiff's horse was admissible to show that the defendant ought to have foreseen the danger of such a casualty and to have provided against it. And we think that all of the evidence was admissible to aid the jury in determining whether or not there was negligence in the particular blast by which the damage complained of was occasioned. Evidence that negligent blasting threw rocks in all directions might be looked to by the jury in determining whether the blasting was negligently done which threw the rock upon the plaintiff's stable. As to the admissibility of this evidence on the idea that negligence upon other occasions may be considered by the jury as showing a probability that there was negligence upon the particular occasion in question, the authorities are in conflict. Railway v. Flannagan, 82 Ga. 579, 9 S.E. 471, and cases cited. Under the decision just cited, "doubtful evidence is to be admitted rather than excluded." In that case, to show probable negligence on the part of a locomotive engineer at a certain time and place, evidence was admitted as to his having been negligent at other times at the same place. The evidence admitted in the present case has not the same doubt attached to it. The blasting done by the defendant was at some distance from the plaintiff's place of business, and the plaintiff could scarcely have shown that there was negligence in the particular blast by which the damage was done except by evidence of this character. The work was continuous. Such blasting as was done may be considered as a single job or undertaking which it took a number of days to complete. This being true, it seems to us that the jury could properly infer, from evidence showing negligence in the blasting done at various times during the continuance of the undertaking, that the same negligence attended the blast by which the plaintiff's property was injured. ...