Worth v. Dunn

Decision Date06 October 1922
Citation118 A. 467,98 Conn. 51
CourtConnecticut Supreme Court
PartiesWORTH v. DUNN et al.

Appeal from Superior Court, Windham County; William M. Maltbie Judge.

Action by Warren Worth against Daniel P. Dunn and others for an unlawful explosion caused by defendants in the nature of a nuisance and for negligence causing injury to the plaintiff. Verdict and judgment for plaintiff, and appeal by defendants. No error.

The plaintiff offered evidence to prove, and claimed to have proved, facts substantially as follows: On November 25, 1916, there was standing in the city of Willimantic, a short distance southerly from the southerly side of Main street, the rear wall of a building known as the Jordan block, which had shortly before been destroyed by fire. On that day the defendants with the assistance of others were engaged in razing and moving said wall by the use of dynamite. The wall consisted of a stone foundation and brick superstructure. The work of demolition was performed by orders of the defendant Dunn, and was supervised and carried out by the defendants Kelley and Foley, with the assistance of other persons. The defendant Kelley brought the dynamite to the place where the wall stood, arranged the wires and other apparatus used, and fired the same under the direction of the defendant Foley. The charge of dynamite was not blanketed or covered in any manner to prevent the flying of the débr is. The wall as standing was not a menace to such portions of the general public as were then upon the public streets. It stood upon private property, abutted upon no public street or way, but solely upon a railroad right of way and yard. Each of the defendants had full knowledge of the power and nature of dynamite and the danger involved in its use, and caused the dynamite to be exploded in the presence and in close proximity of a large number of people. The explosion ensuing caused the material composing the wall to be thrown with great force for a long distance therefrom. At the time of the explosion the plaintiff and many other persons were standing in the driveway leading from Railroad street easterly toward the rear wall of the Jordan block at a point about 30 feet easterly from Railroad street. Parts of the material composing said wall were thrown with great violence against the leg of the plaintiff, and cut and bruised the same. In use of dynamite so made by defendants the latter were engaged in an operation intrinsically dangerous, obviously exposing the plaintiff and other inhabitants of the city to probable injury and unusual peril. Before and at the time of exploding the dynamite, the defendants had full knowledge of the presence of the persons congregated in the vicinity of the place of explosion. The plaintiff also offered evidence to prove that he was in the exercise of due care, and not himself negligent.

The defendants offered evidence to prove, and claimed to have proved, facts which are summarized as follows: The south wall of the Jordan block abutted on the land of the New York, New Haven & Hartford Railroad Company, and was near land of the Central Vermont Company, and was occupied by the main lines of both companies, and by side tracks and switch tracks. The south wall of said block was about 50 feet high above the foundation, and weighed about 259 tons. A large number of freight and passenger trains were continually passing through said yard. Said south wall had been greatly weakened by the fire, and was liable at any time to collapse. The defendant Dunn was at that time mayor of the city, the defendant Kelley was assistant superintendent of the water department, and the defendant Foley was chief of the fire department, and also inspector of buildings and fire marshal. The attention of Mayor Dunn was called to the dangerous condition of the wall by one of the owners of the building. The mayor conferred with the other defendants as to the situation, and decided that public safety required the prompt demolition of the wall. He procured one Pocaro, an expert in the use of dynamite and an employee of the city, to take charge of the work, which he proceeded to do. The situation required that the wall should be razed by one blast. A large crowd assembled to witness the blasting operations from motives of curiosity. The defendants and other city officials including police officers, made strenuous efforts to keep the crowd at a safe distance. Danger signals were placed at conspicuous points, which could be readily seen by all persons in the vicinity, and a rope was stretched from near Railroad street to a point beyond the east side of the driveway. The wall was completely demolished by the explosion, and most of the débr is sank to the ground, except a few fragments which were flung into the railroad yard, one of which hit the plaintiff, who was standing 140 feet from the wall, and he was seriously injured, suffering a compound fracture of the knee. Fifty pounds of dynamite were used, divided equally in 11 charges. The defendants further offered to prove, and claimed to have proved, that the work of demolition was performed in a workmanlike and careful manner; also that the scattering of fragments from a dynamite explosion was unusual under similar conditions; further, that defendant was present at the time of the explosion, and for half an hour before knew of the necessary and obvious danger likely to ensue, could have seen the danger signals and observed the efforts of the officers to keep the crowd from the vicinity, and was himself ordered to withdraw by an official; also that the injury to the plaintiff was due solely to his own wanton negligence and reckless disregard of danger.

The complaint in the action contains two counts, the first for common-law negligence by reason of want of due care in conducting the blasting operation, and the second alleging that the defendants by the use of said dynamite in the manner and for the purpose employed were engaged in an operation intrinsically dangerous, and one which obviously exposed the inhabitants of said city, including the plaintiff, to probable injury and unusual peril, and that the defendants before and at the time of exploding said dynamite had full knowledge of the presence of the persons congregated in the vicinity of said place of explosion.

The defendants requested the presiding judge to charge, in effect, that if the wall in question was a menace to public safety, the defendant Dunn, as mayor, had a duty to perform, as also had the other officials, and that their acts in causing the explosion were done in the performance of public duty, and for injury resulting from such acts, in the absence of negligence, they were not liable. An instruction was also asked as follows:

" If the jury shall find that the defendants acted not in their official capacity, but as individuals, by consent of and at the request of the owner of the Jordan Block, and that they acted in good faith for the protection of property and life, and used due care in the selection of Porcaro to have charge of the work of razing the wall, then the defendants have not been guilty of negligence, and are not liable for the results of the explosion."

The defendants excepted to the failure of the trial judge to charge, in substance, that if the plaintiff had knowledge of the character of dynamite, and the dangers attending its explosion, and was present at the explosion solely from curiosity, and that in spite of directions to withdraw from his position, he remained there until the explosion, he assumed all risks of any consequences resulting to himself from such explosion, and could not recover unless the acts of the defendants were reckless, wanton, or malicious.

Further facts appear in the opinion.

Charles E. Searls, of Putnam, and Thomas J. Kelley, of Willimantic, for appellants.

Charles L. Torrey, of Putnam, and Samuel B. Harvey, of Willimantic, for appellee.

KEELER, J.

The instructions asked for as regards ordinary common-law negligence and contributory negligence were correct, as was also the charge of the court, elaborated carefully and at length, and the defendants cannot complain of the instructions given in that regard, and no point is made in the brief challenging the same as applied to the cause of action set up in the first count of the complaint. As respects the issues raised by the pleadings on this count the case was properly submitted to the jury.

Upon the facts claimed to be proved with which this court is concerned as summarized in the above statement of facts, the jury could have found both the negligence of the defendants and the freedom therefrom of the plaintiff. It could properly have found negligence of defendants in not covering the damaged wall before exploding the dynamite, to state but one outstanding feature. Also the jury had a right to draw inferences as to negligence in the use of dynamite, either in quantity or method from the effects produced. Rafferty v Davis, 260 Pa. 563, 103 A. 951. As regards contributory negligence of the plaintiff, his...

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    ...without establishing negligence upon the part of the person who conducts such operations. 35 C.J.S., Explosives, § 8c; Worth v. Dunn, 98 Conn. 51, 118 A. 467. According to the weight of authority when a person uses high explosives in conducting blasting operations, without creating a nuisan......
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    ...liable for damages which result from that blasting whether he was negligent in his conduct of the operation or not. Worth v. Dunn, 98 Conn. 51, 59, 118 A. 467; Welz v. Manzillo, 113 Conn. 674, 682, 155 A. 841. To exempt such a one from liability for damage caused by vibrations or concussion......
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