Hunter v. Farren

• Decision Date: 27 October 1879
• Citation: 127 Mass. 481
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James Hunter & another v. Bernard N. Farren

127 Mass. 481

James Hunter & another v. Bernard N. Farren

Supreme Court of Massachusetts

October 27, 1879

Berkshire. Tort. The declaration alleged that the plaintiffs were the owners and occupiers of certain buildings used as a machineshop; that they carried on the business of machinists therein, and employed a large number of workmen in said business; that the defendant, with knowledge of that fact, on divers days between May 1 and November 1, 1875, carelessly negligently and unlawfully blasted rocks in the vicinity of said buildings, and by such blastings caused large stones and rocks to be thrown in, upon and against said buildings "breaking and causing great damage thereto, and preventing the plaintiffs from occupying or using the same or pursuing their lawful business therein, and breaking up and ruining the plaintiffs' business therein." Answer: 1. A general denial. 2. That the injuries complained of were caused by the defendant while excavating rock, in a proper and lawful manner, under a contract with a railroad corporation, and in execution of that contract, and that he was not liable therefor. 3. Payment to the plaintiffs for all damages to their buildings.

At the trial in the Superior Court, before Allen J., the plaintiffs introduced evidence tending to show that the defendant, while executing a contract made with the Boston, Hoosac Tunnel & Western Railroad Company, blasted rocks within the located limits of the Troy & Greenfield Railroad; that while so blasting, pieces of the rock were frequently thrown upon the plaintiffs' premises lying adjacent to the railroad and near to the ledge which the defendant was excavating, and their premises were injured to the amount of several hundred dollars by the stones so thrown; that, upon the happening of any such injury, the defendant promptly adjusted and paid the plaintiffs for all damage to their real estate; that the plaintiffs demanded of the defendant payment for damages occasioned by the interruption of their business and the loss of time of workmen in their employ, but the defendant declined to pay this claim; and that the damage to the buildings was paid for with the understanding that plaintiffs waived no rights to recover for such interruption to their business.

The plaintiffs then offered evidence tending to show that the workmen employed by them in and about their premises, being reasonably apprehensive of danger from flying stones, voluntarily vacated the premises at the time of each blast, notice of which was given by the blowing of a horn by some one in the defendant's employ, to notify travellers upon a highway immediately adjacent to the ledge. This evidence was objected to by the defendant, on the ground that a claim for compensation for loss of time of workmen was too remote to be recovered; and that, under the pleadings, consequential damages alone could not be recovered. The judge admitted the evidence; and the defendant excepted.

There was a conflict of evidence upon the question whether the defendant, in excavating the rock, used due care.

The plaintiffs testified that the amount of time lost by all their workmen by reason of the defendant's acts was 2158 1/4 hours, the value of which to the plaintiffs was $ 863.30, being the sum which they would have charged customers for such labor; and that the above number of hours included lost time of workmen employed in and about their works, and loss of time of workmen not employed in the machine-shop.

The defendant asked the judge to instruct the jury as follows "1. Great latitude of discretion is to be allowed to those who are entrusted with the construction and maintenance of great public works, in the location and mode of construction which they may adopt to effect the objects and purposes to be accomplished. 2. The plaintiffs cannot recover damages for trespass...