Graetz v. McKenzie

• Decision Date: 28 December 1893
• Citation: 9 Wash. 696,35 P. 377
• Court: Washington Supreme Court
• Parties: GRAETZ ET AL. v. MCKENZIE ET AL. [1]

35 P. 377

9 Wash. 696

GRAETZ ET AL. v. MCKENZIE ET AL. ^[1]

Supreme Court of Washington

December 28, 1893

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Bertha L. Graetz and Pearl Maude Graetz against Angus McKenzie and Timothy Glenn for the death of Louis W. Graetz deceased. From a judgment for plaintiffs, defendants appeal. Reversed.

Dunbar C.J., and Scott, J., dissenting.

Turner Graves & McKinstry, for appellants.

David Herman, James Dawson, and Jones, Belt & Quinn, for respondents.

STILES J.

On the 20th day of June, 1890, appellants, while in the prosecution of grading work in the city of Spokane Falls, set off a rock blast, which caused the death of Louis W. Graetz, husband of one of the respondents, and father of the other. This was an action for damages, alleging negligence in the management of the blast. Among other defenses was that of contributory negligence on the part of the deceased, and it is urged here in support of appellants' motion for a nonsuit. The tracts of the Union Pacific Railroad, running east and west, cross Washington street at right angles a few hundred feet north of the Spokane river, and in the space between the railroad and the river, east of the street, appellants were removing a ledge of rocks, to prepare the ground for business purposes. South of the railroad, and west of the street, and exactly at their intersection, was a one-story wooden freight house, some 40 feet in width, and 70 or 80 feet long. The floor of this house was raised a few feet from the ground, after the manner of such buildings, and on the north and south sides and at the west end there was a five or six foot platform, which was overhung by a projecting roof. The east end of the house was flush with the street, without platform or eaves. Steps led up to the platform at the northeast corner of the house; and in the east end was the office, a room about 16 feet square. There was a door from the platform into the office a few feet from the northeast corner, and there were two windows opening into the office in the east end of the building. This work had been going on for several months, and, on the day above mentioned, a blast was made ready to be fired at noon, at a point about 150 feet southeast of the northeast corner of the freight house. A few minutes before the blast was expected to occur, the foreman of the rockwork, one Gannon, went to the freight office, gave warning of the explosion to the railroad employes, and stood on the platform at the corner of the building to watch it. The employes, several in number, left the office, and took positions on the platform, under the projecting eaves, along the north side of the building. After the fuse had been lit, and a little time before the blast exploded, deceased came south along Washington street towards the freight house, and was warned by Gannon of the blast, and told to stand back. He stepped upon the platform, and stood with the others, but when the explosion came, instead of remaining where he was, which turned out to be a perfectly safe place, he rushed through the office door directly towards one of the windows. At the same instant, a piece of rock, weighing 40 or 50 pounds, crashed through the windows, struck him on the head and shoulder, and killed him. The explosion was more severe and destructive than any that had previously occurred in connection with that work. Cars upon the railroad tracks had their sides crushed in, and the freight house walls were more or less damaged, but no stones except those which went through the windows entered the building. Obviously, the safest place within the range of the flying fragments was on the north platform of the freight house, since two walls, each oblique to the direction from which the pieces must come, protected any one standing there; and, as obviously, a position in front of one of the windows was no safer than the open street. Nobody but the deceased was injured, though another man, who was also a stranger there, followed him into the office. When the building began to be struck, the others ran further west along the platform.

Appellants were pursuing a lawful work, which, for the six or seven months during which they had carried it on, had caused injury to no one; but by carrying it on in such a way as necessarily to throw rocks over upon the street and adjacent property, as was the case at every blast, they maintained a nuisance, and were liable for such damage as they might do. In this respect this case differed from Klepsch v. Donald, 4 Wash 436, 30 P. 991, and was, in principle, like Wright v. Compton, 53 Ind. 337; St. Peter v. Denison, 58 N.Y. 410; and Munro v. Reclamation Co., 84 Cal. 515, 24 P. 303. Fair warning, however, of an impending blast, was impliedly held, in Wright v. Compton and St. Peter v. Denison, to be such extraordinary care as would have absolved the defendants if the plaintiffs had failed to heed it; and such must be the case by all rules of good sense. Under the motion for a nonsuit made in the court below, the question of warning became the vital one in the case, and the only theory upon which the motion could have been denied must have been that it was a question for the jury whether the warning given was not so shortly before the explosion that deceased had no time for reasonable action. We say this was the only theory, because, to a man of the most ordinary intelligence, the mere suggestion of a rock blast right ahead would lead to his taking such measures as lay in his power to insure his safety; and deceased, in the language of the complaint, "was a strong, healthy, sober man, 24 years of age, a skilled and expert bricklayer, and competent carpenter and joiner,"-conditions not attainable without intelligence. The evidence on this point for the respondents consisted of the testimony of three eyewitnesses. A. W. Curtis was a clerk in the freight office....