Hunter v. Farren

Ames, J. In this action damages are claimed for negligence and carelessness on the part of the defendant in the doing of certain acts, which he might lawfully do, provided that in doing them he used due and proper care. The verdict of the jury is to the effect that he did not use such care, and that the plaintiffs suffered injury and damage from that cause. As to so much of the damage as consisted of direct and immediate injury to the buildings, compensation has been made, with a distinct reservation on the plaintiffs’ part that they did not, by accepting that compensation, waive any part of their claim for damages arising 484 from the interruption of their business. It appeared also that, before each blast, notice was given by the sounding of a horn, upon which, and under a reasonable apprehension of danger, the plaintiffs’ workmen immediately left off their work and vacated the buildings, so that the plaintiffs’ business suffered much interruption, and they sustained damage for which they have received no compensation. If this damage can be said to be special, and not implied by law from the description of the wrong, it is at least sufficiently averred in the declaration. The rulings requested by the defendant were properly refused. It may be true, as stated by Bigelow, J., in Mellen v. Western Railroad, 4 Gray, 301, that “great latitude of discretion is to be allowed to those who are intrusted by law with the erection and maintenance of great public works,” but this latitude never has been held to go so far as to afford an excuse for carelessness, negligence or wanton disregard of the rights of individuals. This suit is not an action of trespass quare clausum, but in the nature of a special action on the case. The court therefore properly ruled that the adjustment of the damages to the real estate was no bar to the action; it being understood by both parties that the damage by interruption of the plaintiffs’ business was not included in the settlement. The plaintiffs’ workmen were driven from the building by a reasonable and well-founded apprehension of immediate danger to life and limb, from an act which the defendant was about to commit in a careless and improper manner. The damage to the plaintiffs so occasioned was the natural result, and not a mere remote consequence, of the defendant’s want of care. 2 Greenl. Ev. § 254. It was an injury, distinct and separate in its nature from the damage to the building, and not a mere matter in aggravation of that damage. The workmen left the building, not in consequence of the trespass, but to avoid the danger that was expected'to be occasioned by a trespass that the defendant was about to commit. The measure of damages would be the value to the plaintiffs of the work which the defendant’s negligence prevented from being done. In giving the rule as to damages, however, the learned judge apparently overlooked the fact that the complaint of the plaintiffs, as set forth in the declaration, is for the interruption of 485 their use and occupation of the buildings, and for compelling their workmen to vacate the buildings. The verdict apparently includes compensation for the lost time of men employed in and about the works, but not in the building, an item which is not included in the terms of the declaration. For this reason, we find it necessary to order a new trial, not to reopen the question as to the defendant’s liability, but upon the computation of damages only. New trial ordered.