Mitchell v. Prange

Hooker, J. The plaintiff was injured by the kick of a horse which he was shoeing, and recovered a judgment against the defendants, who were engaged in excavating a trench for a sewer, some hundreds of feet distant from his shop. The plaintiff’s claim is that the horse was frightened by an explosion in the trench, caused by the defendants for the purpose of excavating rock. Counsel for the plaintiff admitted upon the trial that blasting was necessary. The first count of the declaration alleges the explosion as wrongful; the second alleges that it was the duty of the defendants to give notice, by ringing a bell or otherwise, to people in the vicinity, that a blast was to be made, which, duty was neglected. Upon the trial it was claimed that defendants’ negligence consisted in using an excessive charge,- in failing to properly cover it, and in failing to give the proper notice of the intended blast; and the case was allowed to go to the jury upon such theories. It was improper to allow the jury to find a verdict upon the ground that the charge was excessive, or that it was [80] not properly covered, as neither was alleged in the declaration. Furthermore, there was no evidence that the charge was an improper one, or that any usual method of covering would have obviated the danger. It was urged that filling the trench with dirt would have lessened the noise, but it was not shown to be a proper or usual or reasonable thing to do, to excavate and refill a trench each time they put in and explode a blast. The specifications under which the work was done required that— ‘ ‘ When rock is found in the bottom of a trench, it is to be taken out,to a depth of six inches below the bottom of the sewer, and replaced by strong gravel, well rammed. Ledge rock, that cannot be removed by pick or bar, will be paid for as extra work at a price named in the proposal for such excavation. Should the contractor fail to name a price for such rock excavation, no extra allowance will be made therefor. The estimate of the quantity of rock excavated will be based upon the bottom width of trench required for laying the different dimensions of sewers, as used in the original estimate of quantity of excavation, with side slopes of one-fourth of a foot horizontal to one foot vertical. In all cases where blasting is necessary, the blast is to be carefully covered with brush or timber sufficient to effectually prevent injury to persons or property.” The provision for covering was evidently to protect persons and property from injúry by fragments which might otherwise be thrown from the trench, and it was error to instruct the jury as follows: ‘ ‘ The contract with the city requires that, in all cases where blasting is necessary, the blast is to be carefully covered with brush or timber, sufficiently to effectually prevent injury to persons or property. Now, was this blast so carefully covered with brush or timber as to sufficiently and effectually prevent injury to persons- or property; or, in other words, did these defendants use all the precaution, notices, and warnings, and cover that blast of dynamite in such a manner, as prudent men ought, under like circumstances, to have exercised, is a question for you to determine.” [81] Nor do we think the defendants negligent in not taking measures to apprise the plaintiff of the intended blast. It appears that they did take precautions to warn passersby within a reasonable distance, but it would hardly be reasonable to expect them to give notice to every one who resided or worked within a radius of 500 feet, especially after the business had been going on, to the knowledge of such persons, for several weeks. The plaintiff knew that blasting was a common occurrence, and to be expected at any minute. This did not deter him from attempting to shoe the horse. He did not know when the -blast was coming, and, if the defendants knew that he h,ad a blacksmith shop in the vicinity, they did not know that he would have the foot of a spirited horse in his lap. Both were engaged in lawful acts, and upon this record the injury appears to be a casualty, which is not ascribable to the defendants’ neglect of duty. Judgment reversed, and a new trial ordered. Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.