Mitchell v. Prange

• Citation: 67 N.W. 1096,110 Mich. 78
• Court: Supreme Court of Michigan
• Decision Date: 08 July 1896
• Parties: MITCHELL v. PRANGE ET AL.

67 N.W. 1096

110 Mich. 78

MITCHELL v. PRANGE ET AL.

Supreme Court of Michigan

July 8, 1896

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Action by John Mitchell against Charles Prange and others to recover for personal injuries alleged to have been caused by defendants' negligence. There was a judgment for plaintiff, and defendants bring error. Reversed.

Birney Hoyt, for appellants.

Peter Doran (Charles A. Watt, of counsel), for appellee.

HOOKER J.

The plaintiff was injured by the kick of a horse which he was shoeing, and recovered a judgment against the defendants, who were engaged in excavating a trench for a sewer, some hundreds of feet distant from his shop. The plaintiff's claim is that the horse was frightened by an explosion in the trench, caused by the defendants for the purpose of excavating rock. Counsel for the plaintiff admitted upon the trial that blasting was necessary. The first count of the declaration alleges the explosion as wrongful; the second alleges that it was the duty of the defendants to give notice, by ringing a bell or otherwise, to people in the vicinity, that a blast was to be made, which duty was neglected. Upon the trial it was claimed that defendants' negligence consisted in using an excessive charge, in failing to properly cover it, and in failing to give the proper notice of the intended blast; and the case was allowed to go to the jury upon such theories. It was improper to allow the jury to find a verdict upon the ground that the charge was excessive, or that it was not properly covered, as neither was alleged in the declaration. Furthermore, there was no evidence that the charge was an improper one, or that any usual method of covering would have violated the danger. It was urged that filing the trench with dirt would have lessened the noise, but it was not shown to be a proper or usual or reasonable thing to do, to excavate and refill a trench each time they put in and explode a blast. The specifications under which the work was done required that: "When rock is found in the bottom of a trench, it is to be taken out to a depth of six inches below the bottom of the sewer, and replaced by strong gravel, well rammed. Ledge rock that cannot be removed by pick or bar will be paid for as extra work at a price named in the proposal for such excavation. Should the contractor fail to name a price for such rock excavation, no extra...