Rafferty v. Davis

• Decision Date: 18 March 1918
• Docket Number: 186
• Citation: 260 Pa. 563,103 A. 951
• Parties: Rafferty v. Davis, Appellant
• Court: Pennsylvania Supreme Court

103 A. 951

260 Pa. 563

Rafferty v. Davis, Appellant

No. 186

Supreme Court of Pennsylvania

March 18, 1918

Argued January 11, 1918

Appeal, No. 186, Jan. T., 1917, by defendant, from judgment of C.P. No. 2, Philadelphia Co., Sept. T., 1915, No. 648, on verdict for plaintiff in case of Marie O. Rafferty by her mother and next friend, Catherine McDermott, v. Earl K Davis. Affirmed.

Trespass to recover damages for personal injuries. Before BARRATT P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $7,500.00 and judgment thereon. Defendant appealed.

Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments are all dismissed, and the judgment is affirmed.

John Weaver, for appellant. -- The plaintiff having alleged negligence as the basis of his action, must prove it: Forster v. Rogers Bros., 247 Pa. 54; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Sowers v. McManus, 214 Pa. 244; Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Lanning v. Pittsburgh Rys. Co., 229 Pa. 575; Wiest v. Electric Traction Co., 200 Pa. 148; McLean v. Schoenhut, 225 Pa. 100; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Stewart v. DeNoon, 220 Pa. 154.

Maurice V. Daniels, for appellee. -- There was overwhelming evidence in this case from which the jury could infer negligence on the part of the defendant. The charge of powder was excessive: Mulchanock v. Whitehall Cement Mfg. Co., 253 Pa. 262.

The case was for the jury: Chittick v. Philadelphia Rapid Transit Co., 224 Pa. 13; Welsh v. Kerr Coal Co., 233 Pa. 341; Hess v. American Pipe Manufacturing Co., 221 Pa. 67; Driscoll v. Gaffey, 207 Mass. 102.

Before MESTREZAT, POTTER, STEWART, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE POTTER:

This is an appeal from a judgment entered upon a verdict for damages to the plaintiff resulting from the negligence of the defendant in conducting blasting operations in or near a residence district. In the statement of claim it is averred that, on September 22, 1915, defendant was the owner and operator of a quarry situated at Dexter street and Schur's lane, Manayunk, Philadelphia; that on the same date plaintiff was sitting at the window of her house, which is about one and a half squares away from where defendant was operating his quarry, and that, while she was thus seated at the window, a large stone or rock, blown from defendant's premises, crashed through the window and severely and permanently injured her. The specific negligence averred against defendant was the use of an overcharge of powder, and failure to use reasonable precautions to safeguard the vicinity from flying pieces of rocks. It is contended upon the part of appellant that the evidence as to such negligence as was set forth in the statement, was not sufficient to justify its submission to the jury. It appears from the record, however, that there was testimony tending to show that the blast was so violent that a witness, distant some fifty yards from the point of the explosion, was thrown off his feet by the shock, and another witness, half a square away, was almost thrown from the roof of his house where he was working; also that a shower of stones and dirt fell on the houses and in the streets, over an area extending a short square and a half from the quarry. If this evidence was credited, it was sufficient to justify an inference by the jury that the blast was the result of an overcharge, and to warrant a finding of negligence upon that ground. Defendant evidently anticipated the possibility of danger from the blast, for the witness, Prince, who was in charge of the work, and who set off the blast, testified that he sent out workmen with red flags to warn people to keep off the streets in the vicinity until the explosion was over. We have several times said that extreme care must be observed in the use of so dangerous a substance as dynamite. In Sowers v. McManus, 214 Pa. 244, the present Chief Justice said (p. 245) that the general rule in cases of the explosion of dynamite, where third parties having no relation to the person having it in possession are injured, is that the highest degree of care must be exercised. The same statement of principle was approved in Derry Coal & Coke Co. v. Kerbaugh, 222 Pa. 448, and in Forster v. Rogers Bros., 247 Pa. 54. In Zahniser v. Penna. Torpedo Co., 190 Pa. 350, this court, speaking through Mr. Justice MITCHELL, said (p. 353): "In cases where the duty is not absolute, like that of a common carrier to exercise the highest care and skill in regard to the safety of a passenger who has committed himself to its charge, but arises in the ordinary course of business, it is essential that it shall appear that the transaction in which the accident occurred was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and that the result was so far out of the usual course that there is no fair inference that it could have been produced by any other cause than negligence. If there is any other cause apparent to which the injury may with equal fairness be attributed, the inference of negligence cannot be drawn."

In the case at bar the...