Mercer v. White

20 Ohio C.C. Dec. 487, 11 Ohio C.C. (n.s.) 140

• Court: Columbiana Circuit Court
• Decided: October 15, 1907
• Status: Published

Opinion

COOK, J.

Lewis E. Moore,' a young man, was killed at East Liverpool, tbis county, by a flying brick caused by dynamiting a wall in that city. There had been a large fire and there was one particular wall left standing that was difficult to demolish. Jackserews were used without effect. Water was tried, but, in consequence of the low pressure, it was-also ineffective, and from the evidence it is apparent that the only practical way to remove the wall was by blasting with dynamite. No-formal permit was obtained from the city government to resort to-blasting, but the officers in control of the streets were informed that-such resort would be had and they consented thereto.

Before the blast was put off, ropes were stretched across all streets- and alleys at a distance from the wall as was supposed to preclude the possibility of there being any danger beyond the ropes. The rope was-stretched across Drury lane, the street upon which young Moore was killed* 195 feet from the wall. No part of the wall or debris was thrown any material distance from the wall but this single brick, and the evidence shows by persons used to. blasting with dynamite that it was a very unusual occurrence; that they had never heard of a similar case, of a brick or a piece of brick being thrown such a distance before.

The street commissioner who had control of the streets was upon the ground at the time of the blasting; as were also a number of the city police and fire department; at the request of defendants in error, jwho were the owners of the building and the contractor in control of the work, for the purpose of warning all persons to keep beyond the ropes' which they did to the best of their ability: so that every precaution was taken to prevent injury from the blast. But it is claimed that blasting in a populous city is a nuisance and that whoever does so does it at his peril and that no amount of precaution will avail anything in case of injury.

In support of this position much reliance is placed by counsel upop the case of Munro v. Dredging & Reclamation Co. 84 Cal. 515 [24 Pac. Rep. 303; 18 Am. St. Rep. 248]. In the opinion in that case it is said:

“The giving of the following instruction by the court is likewise excepted to: ‘It is no defense or answer to an action of this character that defendant, in exploding the blast in question, used and employed skillful and experienced men, and in everything appertaining to blasting it used and exercised the highest degree of care; and I charge you that defendant is liable to damages for the death of said Michael Stanton, if you find that his death resulted from the firing of the-blast in question, even if it rised the highest and utmost care and skill in firing and exploding it.’

“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.

“It is said that the above instructions ignored the doctrine of contributory negligence. As there was no evidence of contributory negligence in the cause, the doctrine of such negligence was properly ignored.”

We are not informed of the circumstances of the blasting in that case, ‘whether it was being done in the erection or demolition of a building. Possibly it was being done in the prosecution of some character of business by a manufacturer or other person which it seems to us would make a material difference.

In this case the old wall was being removed in order that a new building might be erected.

It is well settled that streets may be used temporarily by abutting proprietors in the erection of a building where due care is used in guarding the obstruction so that pedestrians are fully warned, and we cannot see why the same may not be done when proper caution is used in taking away the debris for the purpose of erecting a building.

In the case of Graetz v. McKenzie, 35 Pac. Rep. 377 (Wash.), the Supreme Court of Washington held that:

“1. Blasting, in excavating for a building, so as to throw rocks on the street and adjacent property, is a nuisance, but giving fair warning of an impending blast absolves the excavators from damages for personal injuries, if the injured person failed to heed it.

“2. Where warning of an impending blast was given to a pedestrian on a street before it occurred, and he was advised to take a place of safety along the wall of a building, the fact that he was seized with a sudden panic when the crash came, and rushed into the building, where he was killed by a stone hurled through the window,, will not render the persons exploding the blast liable.”

Although this case was decided by a divided court, yet, it is certainly in harmony with reason. To the same effect is St. Peter v. Denison, 58 N. Y. 416 [17 Am. Rep. 258].

In the case before us plaintiff’s intestate had full knowledge that, the blast was about to be put off and that he should keep out of danger. The rope, as we have before said, -was stretched across Drury lane 195-feet from the place of the blast. It was notice tó all persons to keep-beyond the rope. Furthermore, the people were cautioned by the policemen and firemen to keep outside of the ropes and yet plaintiff’s intestate with others through curiosity, went under the rope on Drury lane and up the street for a distance of 55 feet nearer the wall where the blast was being put off, and while standing at that point was struck with the brick and killed. Had he been outside of the rope he would not have been struck. It was bis own carelessness and recklessness that directly contributed to his death and although defendants in error .may have been guilty of creating a nuisance, yet they could not be held responsible for his death.

Something is claimed by counsel for plaintiff in error on the authority of Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], There is no evidence that defendants in error knew that young Moore was within the ropes before they caused the blast to be put off; hence, that case does not apply. The court did right in directing a verdict for defendants below, and the judgment is -affirmed.

Burrows and Laubie, J«L, concur.