Sullivan v. Dunham
Decision Date | 09 January 1900 |
Citation | 55 N.E. 923,161 N.Y. 290 |
Parties | SULLIVAN v. DUNHAM et al. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
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: 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: 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:
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: ...
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