Hoffman v. Walsh

• Decision Date: 05 February 1906
• Parties: HOFFMAN v. WALSH.
• Court: Missouri Court of Appeals

93 S.W. 853

117 Mo. App. 278

HOFFMAN v. WALSH.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

EXPLOSIVES—INJURIES FROM BLASTING—TRESPASS—ABSENCE OF NEGLIGENCE.

A person blasting rock so as to throw a piece of it upon the premises of another is liable for the injuries of one struck by such piece, irrespective of whether or not the blasting was negligently done.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by William A. Hoffman against Michael Walsh. From a judgment for plaintiff, defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, for appellant. L. A. Lauglin, for respondent.

BROADDUS, P. J.

The plaintiff sues for damages, the result of an injury alleged to have been caused by the act of defendant. In July, 1904, he was engaged at his occupation as a bricklayer on the residence of S. H. Vaile at Forty-Fifth street and Warwick Boulevard, Kansas City, Mo. The defendant, a contractor, was blasting rock in making an excavation for a sewer under a contract with said city, at a distance of about 500 feet south of the place where plaintiff was working on a scaffold, on the inside of the west wall of said residence, with his face to the west. While plaintiff was stooping and handling a brick, the defendant's employés set off an explosion in the rock in the trench, and immediately a piece of rock struck him in the back, severely injuring him. It was shown that the rock that struck the plaintiff resembled the rock that defendant was engaged in blasting, and there was other evidence that it came from that locality. The defendant introduced evidence tending to prove that the rock that struck plaintiff was not thrown by the said blast, and defendant took reasonable and proper precaution to prevent the escape of rock and other débris from the trench when the blast was made. The trial resulted in a judgment for plaintiff, and defendant appealed.

Under the evidence, the court was asked to direct a verdict for the defendant, which the court refused. The principal contention of defendant is that the court, in refusing to direct a verdict in his favor, committed error. Many authorities are cited by the defendant going to show, as a rule, that, where one person is injured by another, the latter is not liable to the former if he was in the exercise of due care when the injury was inflicted. The plaintiff, in that respect, does not take issue with defendant, but says that they have no application under the facts of this case. In Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279, where it was shown that "the defendant, a corporation, dug a canal upon their own land for the purposes authorized by their charter, and in so doing, it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's dwelling upon lands adjoining," it was held that "the right of the owner of lands to the enjoyment thereof is qualified by the right of others. Thus, he may pursue any lawful trade, but he cannot create a nuisance to the premises of another; so he may dig a canal, but in so doing he has no right to blast rocks with gunpowder so as to cast them upon the premises of another"—and "that the defendants were liable for the injury, although no negligence was shown or want of skill in executing the work was alleged or proved." In Tremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284, the plaintiff's property was injured by defendant in the same manner as was shown they injured plaintiff's property in the Hay Case. Defendants, on the trial, offered to prove that the work was done in a careful manner, but were not permitted to do so. The appellate court affirmed the action of the lower court and reaffirmed the law announced in the Hay Case. In Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274, the facts were that, while deceased was traveling along a public highway, he was killed by a section of a tree thrown from abutting property by an explosion. The court stated the question for decision as follows: "The main question presented by this appeal is whether one, who, for a lawful purpose and without negligence or want of skill, explodes a blast upon his own premises and causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable for the injury thus inflicted." The court answers the question by accepting the law of the Hay Case and said: "It rests upon principle founded in public policy, that the safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such a use of one piece by one man as may injure all his neighbors. It makes human life safer by tending to prevent the landowner from casting, either with or without negligence, a part of his land upon the person of one who is where he has the right to be. * * * It lessens the hardship by placing absolute liability upon one who causes the injury." The rule was followed in St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258. In Munro v. Dredging Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248, the explosion was in a thickly settled portion of the city of San Francisco. The court held that no degree of care will excuse a person from responsibility where death was caused by such explosion. The New York cases are supported by Wright v. Compton, 53 Ind. 337; City of Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Carman v. S. & I. R. Co., 4 Ohio St. 399; G. B. & L. Ry. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696; Bradford Co. v. St. Marys Co., 60 Ohio St. 560, 54 N. E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740; Fitzsimons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 65 N. E. 249, 59 L. R. A. 421; City of Joliet v. Wm. Harwood, 86 Ill. 110, 29 Am. Rep. 17.

The appellant cites the following as authority for his position that he is only to be held to the exercise of reasonable care. In Murphy v. City of Lowell, 128 Mass. 396, 35 Am. Rep. 381, it was held that "a city, having the legal right to construct sewers in its streets, is not liable in tort for all damages that may be caused by the blasting of rocks, necessary in such construction, but only for such damages as are occasioned by the carelessness or unskillfulness of its agents doing the work." In Walker v. C., R. I. & P. Ry. Co., 71 Iowa, 658, 33 N. W. 224, was a case where defendant had, as carrier, received and hauled to its terminus a car load of dynamite, which the connecting carrier failed to receive. The defendant placed the car on one of its side tracks, where it exploded and injured plaintiff's property a half mile away. The court held that the...