Wetherbee v. Partridge

• Decision Date: 04 January 1900
• Citation: 55 N.E. 894,175 Mass. 185
• Parties: WETHERBEE v. PARTRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 185

55 N.E. 894

WETHERBEE v. PARTRIDGE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1900

COUNSEL

G. H. Mellen, for plaintiff.

J. P. Leahy and J. C. Pelletier, for defendant.

OPINION

HOLMES, C.J.

This is an action of tort to recover damages for an injury to the plaintiff's property by the blasting of rocks upon adjoining land of the defendant. The defense relied on is that the work was in the hands of an independent contractor, and the question raised by the exceptions is whether that fact entitled the defendant to have a verdict directed in his favor. It may be assumed that the contract contemplated that blasting would be done, and the place where it was done was within three or four feet of the line between the plaintiff and defendant, and about eight or nine feet from the plaintiff's house. Under such circumstances it was plain that the performance of the contract would bring to pass the wrongful consequences of which the plaintiff complains, unless it was guarded against; and, if the principle recognized in Woodman v. Railroad Co., 149 Mass. 335, 340, 21 N.E. 482, 4 L. R. A. 213, applies, the defendant was bound to see that due care was used to prevent harm.

We are of opinion that the principle does apply. In some cases of blasting under an independent contract we might go no further than to hold that there was a question for the jury whether the danger was so great as to make the defendant liable. But in the case at bar the danger was so obvious that only one conclusion was possible, and the defendant did not ask to go to the jury upon this point. What he wanted was to have a verdict in his favor. Cases sustaining the conclusions to which we have come are City of Joliet v. Harwood, 86 Ill. 110; James' Adm'r v. McMinimy, 93 Ky. 471, 20 S.W. 435; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 A. 32. There are some other cases in which the subject has been approached solely from the point of view of master and servant, although not without dissent. These decisions we are not prepared to follow. McCafferty v. Railroad Co., 61 N.Y. 178, 185; Tibbetts v. Railroad Co., 62 Me. 437; Edmundson v. Railroad Co., 111 Pa. St. 316, 2 A. 404. Compare Stone v. Railroad Co., 19 N.H. 427; Wright v. Holbrook, 52 N.H. 120, 126.

Exceptions overruled.