Klepsch v. Donald

• Decision Date: 23 June 1892
• Citation: 30 P. 991,4 Wash. 436
• Parties: KLEPSCH v. DONALD ET AL.
• Court: Washington Supreme Court

30 P. 991

4 Wash. 436

KLEPSCH v. DONALD ET AL.

Supreme Court of Washington

June 23, 1892

Appeal from superior court, Spokane county; R. B. BLAKE, Judge.

Action by Theresa Klepsch, as administratrix, against George Donald James L. Smith, and Frank B. Howell, doing business under the firm name and style of Donald, Smith & Howell, for damages for the death of plaintiff's intestate, caused by defendants' negligence. From a judgment for plaintiff defendants appeal. Reversed.

Thomas C. Griffitts, for appellants.

Jesse Arthur, Arthur & Reagan, John B. Hess, and W. E. King, for respondent.

STILES, J.

The respondent, plaintiff below, was the wife of the deceased Frank Klepsch, who died from wounds inflicted by the fall of a rock thrown through the roof of his house by a blast alleged to have been fired by the appellants, within the city of Spokane Falls. The material portions of the complaint were as follows: "(5) That the defendants, by their negligence, imprudence, carelessness, and wrong conduct, and the carelessness and negligence of their agents and servants, so carelessly and negligently used and managed the giant powder and other material used for exploding, and so negligently and carelessly managed and conducted said blasting, that said Frank Klepsch, deceased, with great force and violence, was struck and hit by a flying rock discharged from said blast, caused by defendants, whilst he, the said deceased, was entirely ignorant of any danger, whereby the said deceased was then and there greatly injured, bruised, hurt, and wounded; that by reason of said injuries, which ensued in consequence of the negligence and carelessness of the defendants as aforesaid, the said Frank Klepsch died; and that said injury was caused without any fault or negligence on the part of said deceased, Frank Klepsch. (6) That the plaintiff was wholly dependent upon the deceased, Frank Klepsch, for subsistence and support, and by reason of his death is left utterly helpless and in destitute circumstances. (7) That, by reason of the premises, the plaintiff, as such administratrix, has sustained damages in the sum of five thousand dollars." The appellants denied that the rock came from their works, and sought to show that it was thrown from the works of other persons who were blasting in the same neighborhood. Appellants strongly urge this court to hold that the great preponderance of the evidence was in their favor on this point, and to remand the cause for a new trial on that ground; but we do not view it as a proper case for interference with the verdict of the jury, who alone were qualified to determine the weight of the conflicting testimony.

Numerous errors of the court are assigned, the mass of which, however, are included within two propositions, viz.: (1) Did the court err in withdrawing the question of negligence from the jury? (2) Was there any evidence in the case upon which a verdict could be sustained?

1. It will be observed that the allegations of the complaint made the negligence, imprudence, and careless management of the giant powder of the appellants the gist of the action, but the only evidence going to sustain those allegations was that the rock, if it came from appellants' works, was thrown horizontally between 940 and 1,200 feet. Under these circumstances, the court took from the jury the entire question of negligence by the following charge: "Under the evidence in this case the only question for the jury to determine, in order that they should find for the plaintiff, is this: Was the death of George Klepsch caused by the act of the defendants, or the act of their servants or employes? There is nothing for the jury to find in this case upon the question of negligence. If the rock which wounded the deceased came from a blast discharged by the defendants, or their servants, and that wound was the cause of his death, then your finding should be for the plaintiff." Appellants complain of this charge, and we think with just cause. Respondent cites as a precedent for this charge Munro v. Reclamation Co., (Cal.) 24 P. 303, the facts of which perhaps bore out the language used, as it was stated in the opinion that "the uncontradicted testimony showed a clear case of explosion in the city, where many persons were living, and where such an explosion could not take place without strong probability of its injuring some one." The circumstances of that case seem to have been such that the act of blasting with dynamite or other high explosive at that place was regarded by the court as per se a nuisance, and therefore unlawful. So, in this case, if there had been facts before the jury such as to warrant the court to instruct as to nuisances, and that an unlawful use of explosives might be found, then the conclusive presumption would have arisen against the appellants if they cast the rock. But neither the complaint nor the evidence claim or pretend to show that it was unreasonable for the appellants to use the blasting powder in the place they used it, and for the accomplishment of the work they were doing. Indeed, from the point whence respondent's witnesses say this rock came, it was nearly or quite 400 feet to the line of appellants' own premises, at the point nearest the house of Klepsch. Negligence was therefore made the basis of the action in the complaint, negligence had to be proven, and the jury should have been permitted to say whether there was negligence or not. The appellants conceded at the trial that the mere fact that the rock was blown to so great a distance, and off the appellants' premises, might be taken as prima facie evidence of negligence in the management of the blast, which, if not rebutted, would be sufficient to sustain a verdict. This concession was made under protest, and appellants do not now admit it to be good law. But we think that it should be the law of such cases, where the agency used is of a nature so dangerous, and where every trace of the material used and the methods employed are usually blown out of sight, and beyond all possibility of proof, except by witnesses who will be naturally unwilling if not hostile.

Respondent has cited us to the leading English case of Rylands v Fletcher, L. R. 3 H. L. 330, which is reported in full in 1 Thomp. Neg. 2, and strenuously argues for its adoption as the rule of decision in this case. Rylands v. Fletcher is not an old case at all. It was finally decided in 1868; and there are many cases in this country of equal importance, which hold otherwise, and are of earlier as well as later date. The principle there announced was that "the person who for his own purposes brings on his land, and collects and keeps there, anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is answerable for all the damages which are the natural consequences of its escape; and, although harmless to others so long as it is confined to his own property, will be obliged to make good the damages which ensue, if he does not succeed in so confining it." That was an application to the storage of water of the same rule of liability to which owners of live animals are subjected upon their escape, which is a rule never adopted in this country as applied to inanimate property. On the contrary, which few exceptions, in America, if one builds a dam upon his own premises, and thereby accumulates water for his own benefit, or if he brings water upon his premises into a reservoir, in case the dam or reservoir gives away and the land of his neighbor is flooded, he is not liable for damage without proof of some fault or negligence on his part. Pixley v. Clark, 35 N.Y. 520; Sheldon v. Sherman, 42 N.Y. 484; Gould, Waters, §§ 296-298; Wood, Nuis. p. 134. The same principle was the basis of the decision in the case of a fire set out by a railroad locomotive, in Railroad Co. v. Farrington, 1 Wash. St. 202, 23 P. 413. But there is also cited to us a line of blasting cases where negligence was presumed, and the defendants were not allowed to show due care in the manner of conducting the operations. These are Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., Id. 163; Wright v. Compton, 53 Ind. 337; Carman v. Railroad Co., 4 Ohio St. 399; Railway Co. v. Eagles, 9 Colo. 544, 13 P. 696. But one of these (Wright v. Compton) was for injuries to the person; all the others were for injuries to real property from casting rocks and earth thereon. All of the subsequent ones cite the Cohoes Cases with approval. But the New York court of appeals has limited those cases which were decided upon a literal construction of the maxim, sic utere tuo ut alienum non lædas. In Losee v. Buchanan, 51 N.Y. 476, it was said that "the damage in the Cohoes cases was the necessary consequence of just what the defendant was doing;" that is, it was no accident, which is none the less an accident, because it comes from negligence, which is not willful or malicious; and in Hay v. Cohoes Co., even, the decision was put upon the basis of nuisance; thus: "A man may prosecute such business as he...