Fox v. Borkey

• Decision Date: 06 May 1889
• Docket Number: 196
• Citation: 126 Pa. 164,17 A. 604
• Parties: BENJAMIN FOX v. WM. BORKEY, ET UX
• Court: Pennsylvania Supreme Court

17 A. 604

126 Pa. 164

BENJAMIN FOX v. WM. BORKEY, ET UX

No. 196

Supreme Court of Pennsylvania

May 6, 1889

Argued March 7, 1889

ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY.

No. 196 January Term 1888, Sup. Ct.; court below, No. 37 January Term 1887, C.P.

On December 31, 1886, William Borkey and Louisa, his wife, for use of the wife, brought an action of trespass against Benjamin Fox, to recover damages for personal injuries to the wife. Issue.

At the trial on December 4, 1888, it was shown in substance that the defendant was the owner of a farm upon which in the year 1886, Mr. Borkey was employed as a cropper, receiving one half the proceeds. On October 25, 1886, the defendant went into a field to blast out some large rocks with charges of dynamite. He had been engaged at this blasting off and on for some time. Mr. and Mrs. Borkey were in the same field husking corn, having two children with them, and were about 80 yards from the place of the blasting. Mr. Borkey testified:

"We had then been husking about two weeks. One Monday morning the 25th of October, we went over to husk again. We were almost done, within a few days. We commenced husking, and were husking along, when all of a sudden it exploded; there was an explosion; the smoke flew over us. My wife said that she would go home, she could not stand this shooting, this blasting, nor the smoke. Then Fox walked away, went by us over towards the ditches. I then said to my wife that I thought he was only going to blast the small rock; that he would not blast any more; that he was going away. Then we commenced to husk again. Pretty soon he came back with a crowbar on his shoulder. We continued to husk. All of a sudden there was an explosion that the earth trembled; fine dirt flew over us like drizzling or hailing. I was on one side of the shock of corn and she on the other, and she fell forward on to the shock; she was trembling all over. Then she got up and sat on the corn, and I went down to him."

Mrs Borkey testified:

"The effect upon me was that it scared me, and I became very nervous, and that I had trouble with my heart, and I did not know anything of myself."

"Q. When did you know anything of yourself after this blast? A. I did not know anything until my husband came back and said we would go out of the field."

The plaintiff introduced the testimony of physicians and others as to the injuries to Mrs. Borkey from the blasting. She called also the defendant, as if on cross-examination, who testified that as his other work would permit him he had for some time been blasting at the rocks to clear them away, and that Mr. Borkey objected to it:

"He came there and gave me some reasons for stopping me; he said he could not husk his corn, could not haul it out, and he also said he did not want me to blast here, and he also said that he wanted to show me that he could stop me. And after we had talked a while I told him what our contract was about going on this land and blasting, and when I told him that he called me a damned liar; then he went away again and I just kept on blasting; and in a couple of days he came there again; . . . I had only two rocks in that place yet and I wanted to get them out, and so before they came down with their corn husking I blasted. I put a charge under one rock and blasted it; it was only a light charge, was not a very heavy blast, and when the blast was set off it tore the rock up at one end and there was a crack made in the end of it and I then went down to my ditches and fetched a crowbar, and took the crowbar and pried the rocks apart where it was cracked; then it fell down. . . . Then I went to work and took a little more than a whole cartridge and put it in between here and covered it up with ground about two feet thick, packed it pretty well, stamped the ground on, and when I had set off that charge then Mr. Borkey came down and told me to stop again, and told me about his wife, etc., this being the third time that he had stopped me, or tried to stop me, and then I told him that having only two rocks in there I wanted to shoot only a little as I wanted to finish it, and it being the third time that he wanted to stop me, I became a little excited and told him I wanted to show him that he could not scare me off where I have a right, and then he went off again, and I measured the direct distance from where I had the dynamite blast, to the place where they were husking, and it was 83 1/3 yards, and when I set this blast off I was away about fifty or sixty yards."

Other testimony is referred to in the opinion of this court.

The court, HAGENMAN, P.J., having reviewed the testimony, charged the jury as follows:

Now, then, as to the law of the case. The court has been requested by the plaintiff to answer certain points. A number have also been submitted by the defendant. These points embrace pretty much the whole of the case. The plaintiff's first point is:

1. If the jury believe the testimony of the plaintiff's witnesses, and that of the defendant himself, that the defendant said that he had blasted the rock to show Borkey that he could not scare him; that he could do as he pleased on his own land; that he did it to vindicate his right; it matters not what agreement he may have had with Borkey as to his right to blast on the land farmed by Borkey, the plaintiff is entitled to damages if her injury was occasioned by the blasting, should they find that such blasting was done in a wilful, negligent, or reckless manner.

Answer: This point is affirmed.

* * *

The defendant's first point is:

1. The defendant, Benjamin Fox, was the owner of the land on which the blasting complained of was done, and the plaintiff has shown no contract or arrangement between him and the defendant which made it unlawful for the defendant to carry on blasting operations upon the premises in a reasonable manner.

Answer: This is affirmed.

2. If the plaintiff, Mrs. Borkey, owing to a nervous temperament, or cause known to her, was unable to endure the noise produced by what she has called a light blast, it was her duty to make her condition known to the defendant, and not to have done so was negligence on her part, and disentitles her to a recovery.

Answer: Affirmed, if the blasting was not greater than that which was ordinary and usual for defendant's purposes, but if it was beyond that, and was done wantonly and wickedly, it was not her duty to make her condition known to the defendant.

3. When Mrs. Borkey said of the first blast that "she would go home, she could not stand this shooting, this blasting, nor the smoke," her husband should have permitted her to go; her remaining there, knowing that she could not stand the blasting, was negligence and disentitles her to recovery.

Answer: Affirmed, if the subsequent blasting was not greater than that which was ordinary and usual.

4. The rule of law is that a man is...