75 Wash. 500 | Wash. | 1913
The plaintiff in the lower court recovered a judgment for $2,000 for personal injuries. The defendant has appealed. The facts are, in substance, as follows: In the year 1911, the plaintiff was the keeper and caretaker of a pre
Several errors are assigned on this appeal, but these are argued upon two questions: (1) that there was no liability on the part of the appellant for blasting in the manner and under the circumstances disclosed by the record; and (2) that the verdict is excessive.
The complaint is based upon an allegation of trespass by the appellant. It is argued by the appellant that the evidence fails to show a trespass because the owner of the premises, the Calispel Duck Club, had given permission to the appellant to destroy a part of the dam. While it is true that permission was given, nothing was said in the permission, which was in writing, about the manner in which the dam was to be removed. There is no intimation in this permission that dynamite or explosives should be used in the removal of the dam. It is apparently conceded by the respondent that, if the appellant was not a trespasser upon the premises in the use of dynamite, that it was necessary for the respondent to show negligence before a recovery could be had. Assuming, therefore, that the appellant was authorized to enter upon the premises and use dynamite or other explosives in the destruction of the dam, it was clearly the duty of the appellant to exercise care in the use thereof. While the complaint in this action was drawn upon the theory that the appellant was a trespasser in the use of the dynamite, evidence was introduced, without objection, as to the manner in which the dynamite was used, and there was sufficient evidence to show that the respondent had no notice that the blast was about to be discharged at the time of the injury. It is true that he was notified that a blast was about to be discharged at a time previous to the injury. He was also notified that the blast had missed fire, and he was not cautioned that the blast would thereafter be set off without notice to him. It
In Beall v. Seattle, 28 Wash. 593, 69 Pac. 12, 92 Am. St. 892, 61 L. R. A. 583, beginning at the bottom of page 603 of 28 Wash., we said:
“An explosion being a thing so unforseen and unexpected in its nature, it is held that negligence will be presumed, if unexplained. There is some conflict in authority upon this subject, but we believe the better reasoning and the weight of authority support the above statement of the law. Some distinction has been made between cases where contractual relations exist between the parties, and those where there is no such relation; it being held that, when such relation exists, proof of the explosion carries with it the presumption of negligence, and makes a prima facie case, when such would not be true if the contractual relation did not exist. We think the better reasoning is with those cases which hold that the presumption arises not only in favor of those sustaining contractual ties, but in favor of all others as well. The duty to exercise reasonable care in. the maintenance and operation of instrumentalities and devices liable to explosion runs to all mankind.”
So in this case, it was the duty of the appellant to give timely warning to the respondent that a blast was about to be discharged, or would be discharged within a certain time. The respondent knew that a blast had been prepared, but
It is next argued by the appellant that the verdict is excessive. The evidence shows that the respondent was knocked senseless. He suffered an injury to his head, and also to his foot which was run over by the wagon. The result of these injuries was to render him nervous and weak and cause him to move about with difficulty. He was a man 52 years of age. One of the physicians who gave the respondent a physical examination testified that he found' a depression on the skull of the respondent; and that he may never recover from his injuries. We are unable to say, under those circumstances, that the verdict of $2,000 is excessive.
The judgment is therefore affirmed.
Crow, C. J., Parker, Gose, and Chadwick, JJ., concur.