The defendant does not contend that any specific view of the law, arising out of the testimony, could not be presented to the jury through the medium of pertinent instructions upon the issue submitted. This being the test of the question whether the Judge below kept within the bounds of his discretionary power when he refused to add the issue suggested, the first exception is manifestly not well founded.
*153
McAdoo
v.
Railroad,
Excavating by blasting is one of the approved methods of constructing a railway, and the prudent use of such an agency in removing hard material is always deemed to have been in contemplation when the damage was assessed for the right-of-way, as a necessary incident to the privilege. But where damage is done to the land of the owner adjacent to that within the condemned boundary, if it result from managing or handling explosive material carelessly or unskillfully, or from the unnecessary use of such as is so powerful that the injury might be expected to follow as a natural or probable consequence, the corporation is answerable in a new action. 1 Wood Railroad Law, 634, and note;
Sabine
v.
Railroad,
We do not think that the privilege of throwing stones through the air two hundred or more yards and beyond the right-of-way, so as to endanger the lives of the owners of
*155
adjacent land and of the members of their families, when engaged in their domestic duties in and around their dwelling-house, passes with the right-of-way as a necessary incident to the easement. “ In determining what is the duty, the failure in which constitutes negligence, regard is to be had to the growth of science and the improvements in the arts which take place from generation to generation, and many acts or omissions are now evidence of carelessness which a few years ago would not have been culpable at all, as many acts are now consistent with great care and skill which in a few years will be considered the height of imprudence.” 1 Shearman
&
R., sec. 12. The Supreme Court of Michigan held, where one was passing along a public road and was injured by a blast in a mine on land adjacent to the road, it was negligence in the owner not to cover the mine so as to protect travelers from missiles thrown up by the explosive material.
Beauchamp
v.
Mining Co.,
We concur with the Judge below in the opinion that if the defendant contractor, or his agent in charge of the work, knew, or could by reasonable diligence have known, that the stones thrown out by his blasts had been falling on or around the dwelling of intestate, so as to imperil the safety of the family engaged in their ordinary household work, it was his duty to have'protected them by constructing a covering, if his work wTas in such a depression, that he could erect barriers at reasonable cost, and thereby obviate the *157 danger. But if the costs of such coverings would have been so great as to consume all or more than all of the profit lie-would otherwise have derived from performing his work under the contract, we think that in any event he could not escape the duty devolving upon him so soon as he had knowledge, or ought to have known of the danger, of giving actual warning to those who were in peril. When it was shown that the family of the intestate were exposed to such danger from the blast, and that defendants, in the exercise of reasonable diligence, ought to have known that fact, it was incumbent on them, if they would relieve themselves from-responsibility, to show that they had provided the covering,, or given the warning, or that the negligent conduct of plaintiff’s intestate was the proximate cause of the injury.
As the Judge below left the liability of the defendant-dependent upon actual knowledge of the danger, before the duty of constructing a covering or giving warning would arise, the defendant has no reason to complain of the legal propositions laid down by him. Nor can he assign as error the fact that the Judge embodied in his charge, as an abstract proposition, what is known as the “ rule of the prudent man,” in response to and in compliance with a request contained in both clauses, three and nine, of his prayer for instructions, especially when, in specific instructions given afterwards, he correctly applied the law of negligence and contributory negligence to the facts of this case as a'guide to the jury in their deliberations. If the plaintiff’s intestate-had remained in his yard, or at his well, when he was engaged in his ordinary work, instead of going behind the corner of the house, the negligence of the defendant, which,, under instruction of the Court, was to be considered as a cause of injury only on condition of his failure to erect a covering, if practicable, or, at all events, to give warning of the danger, would have been the proximate cause of the injury. The jury were instructed in effect that they should *158 respond No to the issue involving defendant’s negligence unless they found he had failed in his duty as to erecting a covering or giving warning, and if they so responded to that issue, it would be unnecessary to consider the other issues. So that they could not reach ihe second issue till they had found that “plaintiff’s intestate was killed by the wrongful act or negligence of Moorman <& Co., evinced in the omission, when it was practicable to do so at reasonable cost, to erect a coveiing-or to give timely notice.” There was conflicting evidence as to the giving of actual warning, as the intestate’s wife testified that “nobody hallooed at all,” while two of the defendant’s witnessess testified as to notice. • Contradictory statements, if made by her, went to the jury as bearing upon her credibility, of which they were the sole judges. After finding that the defendant was.in fault in not giving timely notice, or failing to construct a covering, the intestate would, not be culpable if he remained in the open yard without warning. So we fail to see how, after passing upon the first issue, it was material to consider whether the intestate took refuge behind the house or not. But the jury evidently reached the conclusion that he did, and that it was a safe place. We do not think that intestate was bound to find an abs dutely safe place. He, at most, was expected, in the hurry of the moment, and when in peril, brought about by defendant’s negligence, to have made an effort to protect himself, and, like a passenger who errs in judgment in seeking safety in case of derailment of a train, he was not culpable if he made a mistake. 2 Wood Ry. Law, 1141, 1146, notes. If the Judge left questions to the jury that were not properly within their province, the defendant can assign it as error only on condition that he shows that he was thereby injured, and that he cannot do in this case
The rule for determining the amount of damages in which he mentions the net earnings, with health, habits, &c., as factors in making the estimate, was not erroneous, as far as *159 it went, and there was no such failure to comply with the requests as to furnish ground for complaint.
It was not error to give a summary of the contentions on both sides, nor was it error to mention the fact of killing as the point of departure in enumerating plaintiff’s contention, and in giving a summary of the testimony relied on by him.
State
v.
Boyle,
Upon a view of all the exceptions relied on, we think that there was no error of which the defendant could justly complain.
No Error.