L. & N. R. Co. v. Smith's Administrator

• Decision Date: 09 October 1923
• Citation: 203 Ky. 513
• Parties: Louisville & Nashville Railroad Company v. Smith's Administrator.
• Court: Kentucky Court of Appeals

Page 513

203 Ky. 513

Louisville & Nashville Railroad Company v. Smith's Administrator.

Court of Appeals of Kentucky.

Decided October 9, 1923.

Appeal from Warren Circuit Court.

B. D. WARFIELD and JOHN B. RODES for appellant.

THOMAS, THOMAS & LOGAN and G. D. MILLIKEN for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

A wreck of a freight train on appellant Louisville & Nashville Railroad Company's line, crossing Barren river in Warren county, demolished one span of a steel bridge. To remove the train wreck as well as the hanging parts of the bridge from the piers the employes of the company placed dynamite under one end of the wrecked bridge for the purpose of blasting it off the abutment into Barren river so that a new structure might be erected in the place of the old one and train operation be resumed. The wreck occurred in the suburbs of the city of Bowling Green. It attracted a great deal of attention and when it became noised about the city that the company intended to dynamite the bridge off the abutment and allow it to fall into the river, a great crowd of people gathered to witness the sight. Appellant's employes were at work cleaning up the wreckage. In order to keep the people back they stretched a wire around the place where they worked. Later as the crowd grew larger they ordered the people back and put up a rope ranging from 180 feet to 200 feet from the bridge, and directed all persons, except employees, to stay on the outside of that rope. When the dynamite was placed under the end of the bridge some one shouted, "Lookout, they are going to fire a shot," whereupon everyone fixed his eyes upon the bridge. Two explosions occurred. The first one, a small shot, seemed to have little effect upon the bridge, but the second shot, a much louder and more powerful one, moved the bridge somewhat and tore from it small pieces of steel which were thrown through the air, one striking a Mr. Cromwell and tearing off the top of his head, and the other striking appellee's decedent, Guy W. Smith, and producing a large wound in his body from which he in two days thereafter died. It is to recover damages for the wrongful death of Smith that this suit was instituted and is now being prosecuted.

A verdict was returned by the jury in favor of the administrator of Smith for the sum of $15,000.00 and the railroad company appeals. It insists:

(1) That there was no evidence showing it was negligent or that decedent's death was otherwise than accidental; in fact, appellant took greater care than the law required of it on that occasion; that the case is one for the application of the doctrine of volenti non fit injuria, and there should have been a peremptory instruction for appellant.

(2) The court admitted very incompetent evidence for the administrator.

(3) The damages are excessive.

(4) The instructions are radically erroneous.

We cannot agree with counsel for appellant that the death of Smith was not the result of its negligence. The railroad company did not take greater care than the law required of it on that occasion; nor do we think that the doctrine expressed in the Latin maxim above quoted has application to this case. The law governing the use of explosives is well established. Like other dangerous instrumentalities, greater care must be exercised by those who employ them than is required in the use of less dangerous and better known and understood forces. The decided weight of authority, says 11 R. C. L., page 673, supports the view that where one explodes blasts on his own lands, thereby throwing rock, earth or debris on the premises of his neighbor, commits a trespass and is answerable for the damage caused, irrespective of whether the blasting is negligently done. This rule is not restricted to liability for injury to the lands or improvements of an adjoining owner. As the safety of persons is more sacred than the safety of property, the liability extends to personal injuries inflicted on such adjoining owner or on anyone who is lawfully upon his premises. The rule extends, moreover, to injuries inflicted upon persons traveling upon the public highway. Hence it is that one who explodes blasts upon his own land and thereby causes a piece of the blasted substances to fall upon a person lawfully traveling on a public highway, is liable as a trespasser for the injury thus inflicted, although the blast is fired for a lawful purpose and without negligence or want of skill. The text is supported by much authority.

In the case of Alleghany Coke Company v. Massey, reported in 163 Ky. 795, we said, in discussing the rights of persons engaged in making excavations by blasting:

"Here the blasting was done in such close proximity to plaintiff's residence and other adjoining residences, with knowledge of the fact that these residences were occupied, that a rock from one of the blasts was thrown into plaintiff's residence and caused the injury. The fact that plaintiff's father was an employe of the coke company and rented the premises in question in no way affects the case. It was plaintiff's home and his rights are the same as if the property had been owned by his father. As we view it, the sanctity with which the common law invests one's home is not confined merely to the property itself. We are not, therefore, disposed to take the narrow view that for trespasses resulting in injuries to one's property a recovery can be had, but no liability attaches where the trespass results in injury to one's person."

See also Sullivan v. Dunham, 47 L. R. A. 715; Baker v. Hagley, 55 Am. St. Reports, 712, and note.

We believe the generally accepted rule to be that one who sets off or explodes dynamite, powder or other inherently dangerous substances on his own land or right of way and thereby throws rock, earth, debris or other substances on to the premises of his neighbor is guilty of a trespass for which he is answerable in damages irrespective of whether the blasting was done prudently or negligently. It would seem that the safety of persons is much more sacred than the safety of property, and that one using explosives should be held to a stricter observance of the rule and required to respond in damages for personal injuries thus inflicted without regard to the care with which the exploder handles and sets off the blasts.

Nor is one beyond the pale of the law in...