Britz v. Houlehan

Ellis, J. This is an action for damages for personal injuries, claimed to have been Sustained by the plaintiff wife by the setting off of a blast by the defendant. The complaint, in substance, alleged that the defendant owns and operates a brick yard, in the city of Seattle, directly across the street from the home of the plaintiffs; that, about March 1, 1910, while the plaintiff wife was in the back yard of her home, the defendant, without warning, caused to be discharged an explosive in or near their brick yard; that the explosion was accompanied by a terrific concussion, and caused a large quantity of dirt, dust, and brick dust to be thrown in every direction; that the plaintiff wife was stunned and shocked by the explosion, and that a considerable quantity of dust and brick dust was thrown against her person and into her face and eyes; that her eyes thereby became sore and ulcerated, and she was rendered practically blind for some time, suffering great pain; that prior to that time, her eyes had been sound and in good condition; that she was forced to secure the services of a physician, and incurred expense to the extent of $50; that she was rendered unable to perform her regular duties, and still has much trouble with her eyes because of the injury. The answer denied the material allegations of the complaint, and, by way of affirmative defense, alleged that, prior to the time of the accident, the plaintiff wife was suffering from some disease, of the eyes which caused their present condition, and that this condition was in no way caused by any act of the defendant. The affirmative matter in the answer was traversed by the reply. The jury returned a verdict for the plaintiffs in the sum of $500. The defendant moved for judgment notwithstanding the verdict, and in the alternative, for a new trial. Both of these motions [508] were overruled, and judgment was entered upon the verdict. The defendant appeals. The appellant advances three grounds as entitling her to a reversal: (1) that the complaint charged no negligence; (2) that the evidence was insufficient to sustain the verdict; (8) that the court erred in giving certain instructions. I. Though the complaint does not characterize the acts of the appellant as negligence, it does set out facts which, if sustained, would constitute negligence. It alleges the setting off of the blast without notice or warning in the midst of a populous city, directly across the street from the respondents’ residence, causing a terrific concussion and throwing dust or brick dust into the respondent’s eyes, whereby they were injured. These things, if sustained by the proof, prima facie established negligence. They were sufficient to put the appellant to her defense of due care. “We hold, therefore, that in this case, as the blasting is not claimed to have been unlawful, the liability of the appellants depended uponi whether they were negligent or not, to prove which under the circumstances the fact of the injury was sufficient prima facie evidence; but that they should have been permitted to show due care on their part, and that the question of their negligence was for the jury.” Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991, 81 Am. St. 936. See, also, Beall v. Seattle, 28 Wash. 593, 69 Pac. 12, 92 Am. St. 892, 61 L. R. A. 583; Klein v. Phelps Lumber Co., 75 Wash. 500, 135 Pac. 226; Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 48 Am. St. 146, 29 L. R. A. 718; Hay v. Cohoes Co., 2 N. Y. (2 Comst.) 159, 51 Am. Dec. 279; Colton v. Onerdonk, 69 Cal. 155, 10 Pac. 395, 58 Am. Rep. 556; Munro v. Pacific Coast Dredging Reclamation Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. 248. It was only necessary to plead such facts as it was necessary to prove, and which, if established, would make a prima facie case. Such facts were pleaded. The complaint was sufficient. II. There was ample evidence to sustain the verdict. A review of it in detail would merely lengthen this opinion to no [509] profit. The principal contention is that there was a variance between allegation and proof in that the evidence showed that the plaintiff’s eyes were injured, if at all, by some other substance than brick dust. There was ample evidence to go to the jury tending to show that some foreign substance was, by the blast, thrown into the plaintiff’s eyes. That it did not affirmatively appear that it Was brick dust hardly arises to the dignity of a variance, much less a fatal variance between pleading and proof. We have carefully examined the voluminous record, consisting of nearly three hundred pages, and find a sharp conflict on nearly every question of fact. The trial court denied the motion for new trial. In such a case, it is elementary that the verdict of the jury will not be set aside on appeal for insufficiency of evidence. III. In his charge to the jury, the trial court, after reciting the allegations of the affirmative defense contained in the answer, said: “This affirmative defense adds nothing to the pleadings in the case.” The appellant contends that this language Was calculated to lead the jury to believe that evidence tending to establish a prior diseased condition of the eyes should have no weight or consideration. If this were all of the instruction, there would be some merit in the claim. The, court, however, almost immediately thereafter, and as a part of the same instruction, charged the jury as follows: “Any soreness or trouble of Mrs. Britz’s eyes prior to that time would mot in itself be any defense. That would simply go to the amount of the recovery. Defendants would not have any right to injure or damage Mrs. Britz’s eyes because of the fact that they were sore or diseased, if you find that they were sore and diseased. On the other hand, the defendants would not be responsible for such soreness or disease not caused by the acts of the defendants as set forth in the complaint. For any aggravation, however, of such trouble or any injury in addition to any prior trouble, if any, the defendants would be liable, if liable at all. You will, therefore not consider this affirmative defense pleaded in the answer as a separate affirmative defense, but could only take into consideration [510] the matters pleaded therein in determining the amount of your verdict if you should find in favor of the plaintiffs.” The instruction, taken as a whole, clearly stated the law as repeatedly declared by this court. Frick v. Washington Water Power Co., 76 Wash. 12, 135 Pac. 470; Zolarwenski v. Aberdeen, 72 Wash. 95, 129 Pac. 1090 ; Jordan v. Seattle, 30 Wash. 298, 70 Pac. 743. The court further instructed the jury to the effect that proof that the explosion occurred without warning and was caused by the defendant to the plaintiff’s injury, made a prima facie case against the defendant, casting upon her the burden of showing that she exercised due care. The appellant contends that this instruction was erroneous, in that it cast upon, her the burden of showing that she-used due care and gave warning. Under the circumstances of this case, we find no error in this instruction. What we have said in discussing the pleadings and authorities there cited make a further discussion of this question unnecessary. In Munro v. Pacific Coast Dredging & Reclamation Co., supra, the supreme court of California, in passing upon an instruction couched in almost the same terms as that here under consideration, used the following language: “We perceive no error in the above direction. . The evidence shows clearly that this blast was exploded in a thickly settled portion of the city. We are of opinion that no degree of care will excuse a person, where death was caused by such explosion, from responsibility for it.” The record presents no error warranting a reversal. The judgment is affirmed. Crow, C. J., Main, Chadwick, and Gose, JJ., concur.