128 F. 561 | 9th Cir. | 1904
Lead Opinion
(after stating the facts as above). The assignments of error relate solely to the action of the trial court in granting the defendants’ motion for a nonsuit. The only question for determination is, therefore, whether or not the evidence introduced by the plaintiff was sufficient to sustain the plaintiff’s case.
The negligence alleged in the complaint is the setting off of the blasts by the defendants at the particular time mentioned, when many persons were passing to and from the boat, and the failure of the defendants to give notice or warning to the plaintiff and others that they were about to do such blasting. It is admitted b)r counsel for plaintiff, in their brief, that the right of the defendants to blast in the prosecution of their work was paramount to the right of the public in using the river; and the Circuit Court of Appeals, upon the former hearing, established the law" of the case in this regard, when it agreed with the ruling of the trial court that “the plaintiff and his fellow passengers went Upon the premises where the blasting was being done with their eyes open. Their right there, whether it was a right by sufferance or license, implied or otherwise, was. subordinate to the right of the defendants to prosecute the work in which they were engaged.” The testimony sho-ws that it was the practice of the defendants to fire ,off
“Ttoe policy of tlie law has relegated the determination of such questions to the jury under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as .would be expected of reasonable, prudent men under a similar state of affairs. When a given state of facts is'such that reasonable men may fairly differ upon the question, as to whether there was negligence or not, the determination of the mattér is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court” — citing cases.
In our opinion, the question whether or not the defendants exercised reasonable care in the operation of blasting at the time and under the circumstances disclosed by the testimony was a proper one for the jury to determine, as well’ as the question of contributory negligence on the part of the plaintiff. The court below treated the testimon)'- of the plaintiff to the effect that he knew that blasting was going'on as conclusive against him on the question of notice. In this the learned judge fell into error, in our opinion. It is conceivable that reasonable men might say that in the prosecution of such work, under the circumstances disclosed by the record, some notice should be given of each separate and distinct blast fired in the immediate vicinity of people liable to be injured thereby.
For the reasons stated, we think the court erred in taking the case from the jury. The judgment is therefore reversed, and the cause remanded for a new trial in accordance with this opinion.
Dissenting Opinion
(dissenting). The evidence, to my mind, clearly shows that the plaintiff in error had knowledge of the fact that blasting was, going on before he went upon the boat. If so, he had knowledge of the fact concerning which it is charged in the complaint that the defendants in error failed to give notice. It must be borne in mind that the allegation of negligence concerning the failure to give notice was, not that the defendants in error failed to notify the plaintiff in error of the danger involved in the blasting, but merely failed to give notice of the fact that they were about to do the blasting. The allegation is that the defendants in error “negligently and carelessly omitted to give notice or warning to plaintiff and others that they were about to do said blasting.” The plaintiff in error, on the first trial of the cause, testified as follows: “There was about twenty-