Worth v. Dunn

*57 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 count 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. St. 563, 103 Atl. 951. As regards contributory negligence of the plaintiff, his fault, as alleged by the defendants, was in standing too near to the place of explosion under all the existing circumstances. Now with a situation like that involved in the case, there is some point distant from the scene of action where a prudent man in the use of due care may stand. It was for the jury to say from the evidence where that point was, and whether the plaintiff was or was not negligent in standing where he did stand. The question of negligence, both as regards the plaintiff and defendants, was a fair one for the jury, and was evidently determined by it in favor of the plaintiff upon the first count, since the verdict is a general one. The exceptions to the court’s refusal to charge that *58 the defendants were public officials fulfilling a public duty, are abandoned in the brief, wherein they say: “ In other words, it seems to us that these defendants can justify what they did, as individuals, if not as officials. To state it a little differently, it does not seem to us that the fact that these defendants were city officials is important, and it may be eliminated from the discussion.” Certainly no public statute nor any ordinance of the city of Willimantic has been brought to the attention of this court, which would justify in the circumstances appearing in this case any action by any of the defendants as officials of the city in the manner in which the defendants proceeded. General Statutes, § 2606, provided a remedy in such a situation as existed with respect to the dangerous wall on the Jordan Block, but it does not appear that any attempt was made by anyone to have recourse to its provisions. Furthermore, by the charter of the city of Willimantic, the power is confided to the Common Council to provide for and enforce the removal or demolition of an unsafe building or part thereof. 11 Special Laws, p.1120. In view of these considerations, we need not pass upon the authority of the mayor under the police power to abate any nuisance menacing the public. These considerations dispose of the fourth and fifth assignments of error, so far as they were pressed. The defendants, however, insist that the situation existing constituted a crisis of the most startling character, involving human lives and presenting an emergency in which the action taken by defendants at the request of the owner of the building was imperatively demanded, and was the only action possible to immediately bring about the results desired. Such a claim and the evidence adduced in its support, might well have been considered by the jury in determining what was due care on the part of the defendants under the exist *59 ing circumstances, and doubtless was so considered. But we fail to see how the existence of the emergency-claimed introduced any modifying elements in the situation as a matter of law,' nor has any consideration or authority been brought to our attention which supports such a contention. What we have thus far said also disposes of the first assignment of error as covered by requests to charge numbered 37, 38, 39, 41 and the first paragraph of the request numbered 42. In further considering the charge of the court in relation to the facts claimed to be true, we may observe that defendants in their brief do not question the truth of the facts appearing in the above statement as claimed to be proved by the plaintiff, except as to the claim of due care on his part, and expressly so state. The second, third and sixth assignments of error bring up for consideration those portions of the charge of the court relating to the creation of a nuisance by the use of a dangerous instrumentality. In the charge the court states the rule as to the use of instrumentalities intrinsically dangerous, as follows: “A person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to probable injuiy, is liable if such injury results, even though he uses all proper care.” The court further charged the jury that if the use of dynamite necessarily and obviously exposed the plaintiff to danger of probable injury, then “the persons who were destroying that wall, or who were responsible for that destruction, are liable to him in damages; and whether under this aspect of the case the plaintiff was himself using proper care for his own protection, whether he came there out of mere curiosity as an onlooker; whether he was upon railroad property with *60 out the consent of the railroad and therefore really a trespasser, is of no consequence, because, being there, the rule establishes an absolute duty which the men who were using this dynamite owed to him.” All that the trial judge charged upon the issues involved in the second count of the complaint is centered upon the two propositions just stated, and is in amplification of them. Instruction was given the jury that as a matter of law dynamite is an intrinsically dangerous substance. This is correct. Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 527, 28 Atl. 32. The principle enunciated in the first of the two propositions just referred to is without doubt a correct statement of the law. 25 Corpus Juris, p. 195, § 20; 11 R. C. L. p. 673, § 27) Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923; S. C. 47 L. R. A. 715 (with note extensively citing authority); Hickey v. McCabe, 30 R. ,1. 346; Joyce on Nuisances, §§ 18, 44, 108; 1 Wood on Nuisances (3d Ed.) § 140; Alexander v. Sherman's Sons Co., 86 Conn. 292, 85 Atl. 583; Pope v. New Haven, 91 Conn. 79, 99 Atl. 51. Citations might be multiplied indefinitely. The court, therefore, charged correctly that if the jury found the intrinsically dangerous substance dynamite to have been employed in such a way as necessarily and obviously to expose the person of plaintiff, no negligence of the defendants need be proved. The second of the propositions above noticed went to the extent of instructing the jury that no act or omission of the plaintiff, having regard to his own safety, could be urged defensively by the defendants. To a large extent and speaking generally, this rule obtains in ordinary cases. “It is a general rule, ordinarily applicable, that the law of contributory negligence has no place in an action to recover damages for a nuisance.” Joyce on Nuisances, § 45. See also 2 Wood on *61 Nuisances (3d Ed.) § 844. The above rule seems to have been strictly and uniformly applied to injuries to real property, but in the consideration of injuries to the person, it has been largely qualified. Joyce on Nuisances, § 46. There are numerous cases which in such a situation as is disclosed by the instant case hold that a want of ordinary care on the part of a plaintiff is a full defense, as in an action for negligence simply; there are others which do not go to this extent but do require some degree of care on the part of a plaintiff in situations like the one under consideration, and regard a reckless and unnecessary exposure to risk of injury by a plaintiff, especially after warning, as a good defense in an action founded on defendants’ creation or operation of a nuisance. Most of the cases available for reference are complicated, as is the present one, by a combination of claim for relief for injury arising out of a nuisance, and for simple negligence, and do not in the opinions draw clearly the distinction, nor make evident the exact ground of recovery as between these causes of action. Any extensive citation or discussion of the authorities would be of little use, and unnecessary in view of the very broad scope of the instruction of the trial judge. In Parker v. Union Woolen Co., 42 Conn. 399, the distinction between injury from a nuisance and from ordinary negligence is recognized, and yet practically the same rule is applied to the conduct of a plaintiff in the one case as in the other. In that case it was claimed that a horse was frightened by the noise of a steam whistle, and pulled violently upon a rope by which he was tethered, and was killed. The horse had a habit of pulling. It was found as a fact in the case that if the whistle had not been sounded, the horse would not have pulled, and if the horse had not had the pulling habit, he would not have been killed. The questions arising in the case *62 were whether the whistle was a nuisance, arid if so, did it cause the injury complained of. The court in its opinion assumed that a nuisance existed, and then proceeded to say in the opinion that if the plaintiff’s “own negligence . . . contributed to the injury it cannot be said, in a legal sense, that it was caused by the negligence of the defendant. Although this is not a case, strictly speaking, of contributory negligence, we think the same principle applies.” It is not necessary to hold in accordance with the claims of defendants, that the lack of ordinary or due care will prevent a recovery by a plaintiff who has been injured by the operation of a nuisance created by the use of an intrinsically dangerous agency, the necessary and obvious effect of which is to cause harm. On this point the authorities are not harmonious. But the instruction of the court in this regard went far beyond negativing the claim just stated. By its terms the jury could not consider any conduct of the plaintiff as regards care for his own safety in connection with the incident. He might heedlessly and recklessly have rushed into imminent danger, and still have been entitled to recover. The conduct of the plaintiff in the premises was entirely withdrawn from the consideration of the jury. For while by the weight of authority the failure of one who suffers injury as the result of a nuisance to use due care will not bar his action for damages for such injury, still his wanton, wilful or reckless misconduct which materially increased the probabilities of injury and contributed thereto will bar such a recovery. While therefore, the defendants were not entitled to an instruction in the terms suggested by the defendants as last quoted in the statement of facts, still the instruction of the trial judge was too broad and without proper limitation. It withdrew from the consideration of the jury matters which *63 should have been left as questions of fact for its determination, and was erroneous. Applying the rule enunciated in Aaronson v. New Haven, 94 Conn. 690, 110 Atl. 872, while the action of the trial judge in instructing the jury with reference to the questions involved in the second count was erroneous, the' verdict as an entirety must stand, since, as we have before stated, the verdict was a general one and the jury therefore found for the plaintiff upon the first count. • The union of claims for relief upon more than one issue presented in one count, where all arise out of the same transaction, is a convenient and generally satisfactory method of procedure; and also the use of two or more counts in stating, the cause of action is frequently the only safe method. But in either case the defendant should protect his interest by following the methods suggested in the case last cited, of taking a verdict upon each count, or by use of interrogatories where there is but one count. There is no error. In this opinion the other judges concurred.