Sullivan v. Dunham

Decision Date09 January 1900
Citation55 N.E. 923,161 N.Y. 290
PartiesSULLIVAN v. DUNHAM et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, appellate division, Second department.

Action by Mary Sullivan, administratrix of Annie E. Harten, deceased, against Carroll Dunham and others. From a judgment of the appellate division (56 N. Y. Supp. 1117) unanimously affirming a judgment in plaintiff's favor, defendants, by permission, appeal. Affirmed.

On the 10th of June, 1895, Annie E. Harten, the plaintiff's intestate, a young lady 19 years of age, while traveling on a public highway near the village of Irvington, in the county of Westchester, was killed by a blow from a section of a tree which fell upon her after it had been hurled more than 400 feet by a blast. The defendants, Dinkel & Jewell, as co-partners, had been employed by the defendant Dunham, the owner of a tract of rough land, to blast out certain trees standing upon it. On the south side of the tract, about 300 feet from the nearest point of the highway in question, there was a large living elm tree, from 60 to 70 feet in height, between which and the highway was some woodland. Dynamite was placed under the roots of this tree and exploded, shattering it and throwing a section of the stump over the intervening forest, a distance of 412 feet, to a point in the highway where the plaintiff's intestate was traveling. She was struck by it with such force as to cause her death within a few hours. This action was brought to recover damages for the benefit of the next of kin on account of the death of the plaintiff's intestate, caused, as alleged, by the wrongful act of the defendants. Notwithstanding their objection and exception, the case was submitted to the jury on the theory that it was not essential for the plaintiff to establish negligence in order to make out a cause of action. The judgment rendered in favor of the plaintiff upon the first trial was reversed by the appellante division on account of erroneous rulings (10 App. Div. 438,41 N. Y. Supp. 1083), but the judgment rendered rendered in her favor upon the second trial was unanimously affirmed; and the defendants, having first obtained leave, now come here.

Isaac N. Mills, Henry C. Griffin and George C. Andrews, for appellants.

Sumner B. Stiles and Francis L. Wellman, for respondent.

VANN, J. (after stating the facts).

The main question presented by this appeal is whether one who, for a lawful purpose, and without negligence or want of skill, explodes a blast upon his own land, and thereby causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable for the injury thus inflicted. The statute authorizes the personal representative of a decedent to ‘maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued.’ Code Civ. Proc. § 1902. It covers any action of trespass upon the person which the deceased could have maintained if she had survived the accident. Stated in another form, therefore, the question before us is whether the defendants are liable as trespassers. This is not a new question, for it has been considered, directly or indirectly, so many times by this court that a reference to the earlier authorities is unnecessary. In the leading case upon the subject the defendant, in order to dig a canal authorized by its charter, necessarily blasted out rocks from its own land with gunpowder, and thus threw fragments against the plaintiff's house, which stood upon the adjoining premises. Although there was no proof of negligence or want of skill, the defendant was held liable for the injury sustained. All the judges concurred in the opinion of Gardiner, J., who said: ‘The defendants had the right to dig the canal; the plaintiff, the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter, as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogether, which might be the consequence if the privilege of the former should sequence if the privilege of the former should be wholly unrestricted. The case before us illustrates this principle; for if the defendants, in excavating their canal, in itself a lawful use of their land, could, in the manner mentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they might, for the same purpose, on the exercise of reasonable care, demolish his house, and thus deprive him of all use of his property. The use of land by the proprietor is not, therefore, an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. To this possession the law prohibits all direct injury, without regard to its extent or the motives of the aggressor. * * * He may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.’ Hay v. Cohoes Co., 2 N. Y. 159. This case was followed immediately by Tremain v. Same, Id. 163,-a similar action against the same defendant,-which offered to show upon the trial ‘that the work was done in the best and most careful manner.’ It was held that the evidence was properly excluded, because the manner in which the defendant performed its work was of no consequence, as what it did to the plaintiff's injury was the sole question.

These were cases of trespass upon lands, while the case before us involves trespass upon the person of a human being, when she was where she had the same right to protection from injury as if she had been walking upon her own land. As the safety of the person is more sacred than the safety of property, the cases cited should govern our decision, unless they are no longer the law. The Hay Case was reviewed by the commission of appeals in Losee v. Buchanan, 51 N. Y. 476, 479, where it was held that one who, without negligence, and with due care and skill, operates a steam boiler upon his own premises, is not liable to his neighbor for the damages caused by the explosion thereof. That was not a case of intentional, but of accidental, explosion. A tremendous force escaped, so to speak, from the owner, but was not voluntarily set free. The court, commenting upon the Hay Case, said: ‘It was held that the defendant was liable for the injury, although no negligence or want of skill in executing the work was alleged or proved. This decision was well supported by the clearest principles. The acts of the defendant in casting the rocks upon plaintiff's premises were direct and immediate. The damages was the necessary consequence of just what the defendant was doing, and it was just as much liable as if it had caused the rocks to be taken by hand, or any other means, and thrown directly upon plaintiff's land.’ The Hay Case was expressly approved and made the basis of judgment in St. Peter v. Denison, 58 N. Y. 416, where a blast, set off by a contractor with the state in the enlargement of the Erie Canal, threw a piece of frozen earth against the plaintiff when he was at work upon the adjoining premises for the owner thereof. In holding the contractor liable, the court said: ‘Even if it should be conceded that the defendant had the right, from being a contractor with the state, to do all that which the state might do in the progress of the work, I do not think that this would justify him, in the state of facts which this case presents, in casting material upon the premises of a private owner, upon which the plaintiff was lawfully engaged. The state could not intrude upon the lawful possession of a citizen, save in accordance with law. Unless authorized by law so to do, the casting of a stone from the bed of the canal upon the land of an adjoining proprietor, either by the state or an individual, was a trespass. Hay v. Cohoes Co., 2 N. Y. 159. * * * Nor can the defendant protect himself from liability, for that his act of blasting out the rock with gunpowder was necessary, and hence that the effects of it upon the adjacent premises were an unavoidable result of a necessary act. The case of Hay v. Cohoes Co., supra, shows that, unless there is a right to the use of the adjacent lands for the purposes of the work, it matters not that the mode adopted of carrying on the work was necessary. * * * It follows, then, that the defendant having no right to invade the premises, which, for the purposes of this case, were the possession of the plaintiff, it matters not whether or no he made his invasion without negligence. Tremain v. Cohoes Co., 2 N. Y. 163;Pixley v. Clark, 35 N. Y. 520.’

This case is analogous to the one before us, because the person injured did not own the land upon which he stood when struck, but he had a right to stand there, the same as the plaintiff's intestate had a right to walk in the highway. We see no distinction in principle between the two cases.

In Mairs v. Association, 89 N. Y. 498, 505, the defendant was held liable, without proof of negligence, for making an excavation upon his own land, through which, during a heavy rain, water found its way into the cellar of the adjoining owner, although the excavation was made under a license from the municipal authorities. Rapallo, j., speaking for all the judges, said: ‘The rights of the parties in such a case do not depend upon the same principles as in cases where the wrong complained of consists of an...

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