145 Ky. 108 | Ky. Ct. App. | 1911
Lead Opinion
Opinion of the Court by
Affirming.
Richard Hieber brought this suit) agajihst the Central Kentucky Traction Company to recover for personal injuries received by him. The court sustained a general demurrer to his petition. He then filed an amended petition. The court sustained the demurrer to his petition as amended, and he failing to plead further, dismissed the action. He appeals.
These facts were alleged in' the original petition: The defendant is a Kentucky corporation conducting an electric railway upon the turnpike known as the Frankfort, Lexington and Versailles turnpike road. On November 5, 1907, and for many yearsi prior thereto Hieber was engaged in the occupation of blacksmith and horse shoer on the turnpike, and on that day 'and for some months prior thereto the defendant operated a rook quarry in which it blasted and crushed rock upon land adjacent to its right of way “near the plaintiff’s blacksmith shop and place of business;” that the defendant and its servants well knew and by the exercise of-ordinary care should have known plaintiff’s occupation and the location of his place of business, and that he was daily, constantly and habitually engaged in shoeing various horses of every disposition and temper for the pubic generally that would reasonably be frightened by the reports of the blast made by the defendant in the quarry; that the plaintiff would thereby be placed in á position of great danger whenever such blasts should occur; that on November 5th, well
In sustaining the general demurrer to the petition containing these averments, the circuit court followed Mitchell v. Prange, 110 Mich. 78, 34 L. R. A. 182. That case was similar to this. The court pointed out the fact that there it was not averred that the charge was excessive, and in concluding its opinion said:
“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 passers-by 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 the blasting was al '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, i'f the defendants knew that he had 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 defendant’s neglect of duty.
Meeting these objections the plaintiff in his amended petition, averred that the defendants in the various blasts complained of, used an improper, unusual and excessive amount of explosive material, and negligently exploded the blast’s without notice: that prior thereto he had notified it of the dangers to which he was subjected by the bl'aists aind requested it to notify hilm when the blasts were to be exploded, so that he could avoid the danger; that thereafter the defendant did habitually notify him when it intended to fire a blast, but' on the occasion in question, it neglected to give him, notice, and fired the blast at ah unusual and unaccustomed time of the day when the plaintiff could not and (fid not know
We do no.t see that these averments are sufficient to make out for the plaintiff a cause of action, and while these matters ajre referred to in the opinion of the court in Mitchell v. Prange, we do not understand that the court rested its judgment on them. The opinion seems to be rested on the broader ground that both the parties were engaged in lawful acts, each upon his own premises, and that the injury was a mlere casualty. In the case at' bar while the plaintiff alleges that the quarry was near the blacksmith shop, he does not statie how near, and from all that appears, it may lrnve been further from it than in the ease referred to. If the defendant used in its quarry an excessive amount of explosive, and by reason of this, hurt some one, it would be liable. But any amount of explosive which is sufficient to blast rock will cause a vibration of the air, and make a report. A neighboring proprietor cannot complain of the amount of explosive used unless it does him some damage. The rule, as we understand it, it is thus stated in Henry Hall’s Sons Co. v. Sundstrom & Stratton Co., 139 N. Y. Supra 391.
“Blasting upon one’s own premises or upon the premises of another, with permission of' the owner, if necessary.for the improvement thereof, is not an unlawful act. Such blasting necessarily causes vibration of the earth and air to a greater or less extent. Such vibrations cannot be confined within inclosed limits'. Hence it must follow that if rightfully and not negligently caused, even though consequential injuries result therefrom, the sufferer is without remedy. Benner v. Atlantic Dredging Company, 134 N. Y. 156, 31 N. E. 328. 17 L. R. A. 220, 30 Am. St. Rep. 649, Booth v. R. W. & O. T. R. R. C. 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Holland House Company v. Baird, 169 N. Y. 136, 62 N. E. 149; Miller v. Twiname, 129 App. Div. 623, 114 N. Y. Supp. 151. But when the results! of Masting are not consequential but direct, when dirt and stones are cast upon the premises of another, so that there is' an actual physical invasion thereof, the question of negligence or want of skill is wholly immaterial. Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279, Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715. 76 Am. St. Rep. 274; Page v. Dempsey, 184 N. Y. 245, 77 N. E. 9. ” ■
The defendant had the same right to blast rock on its premises as the plaintiff had to shoe horses on his. No
It has been held that blasting which' causes unpleasant concussions of the air and shaking of the ground rendering adjoining property untenantable, is a¡ nuisance for which damages may be recovered. (See Gossett v. Southern R. R. Co. 1 L. R. A. N. S., 97) On the other hand the general rule is that one engaged in blasting on his own property is not liable for mere concussion of the air not resulting in actual injury; thus, ini Bessemer, et al Co. v. Doak, 12 L. R. A. N. S., 389, the Court said:
“We think that according to the best-considered decisions, the rule is that if one, in blasting upon his own lands, invades the premises of his neighbor, by'throwing stones and debris thereon, he is1 liable for the resulting injury; but for any other injury, such as may result from the mere concussion of the atmosphere, sound or otherwise, there is no liability, unless it is shown that the work was done negligently, and that the injury was the result of negligence, and not the result of blasting according to the usual methods and with reasonable care.”
There is nothing in the petition before us showing that the blasting in question was not done according to the usual methods and with reasonable dare. All its averments may be'true and yet the defendant may have been prosecuting 'its work of getting out 'the rock as such work is usually done. The plaintiff’s case is not strengthened by the averment that on previous occasions the de
Judgment affirmed.
Dissenting Opinion
Dissenting opinion by
I must dissent from the opinion rendered in this case. I agree that a person may use his own property as he wishes, having due and proper regard for the rights and privileges of ethers. According to the pleadings, appellee knew that appellant was engaged in a lawful business on his premises, and that at most any moment he might have a horse’s foot upon his knee and to fire the blast without notice would, in all probability cause him serious injury. Under the circumstances it was appellee’s duty