86 F. 62 | U.S. Circuit Court for the District of Oregon | 1898
This is an action for damages resulting from an injury received by the plaintiff under the following circumstances: The plaintiff was a passenger on hoard the navigation company’s boat, from the Dalles to Portland. At the Cascade Locks the defendants J. G. & I. N. Day were engaged, as contractors for the government, in making rock excavations for the locks then in course of construction at that point. Their work was being carried on within what is known as the “Government Reserve,” being lands reservéd by the government for the purposes of the work under construction. A large force of men were being employed, and the practice was to fire off blasts at the noon hour, after the workmen had left their work for their dinners, and in the evening, after the time for quitting work. This blasting had been conducted regularly for a considerable period of time at this point, during the short season in which the stage of water would permit that kind of work. The plaintiff, being a passenger as aforesaid, upon arriving at the locks, got on the portage railway, and rode down to the lower wharf, being a point on the reserve near where the work of blasting was being done. He went along with a number of other passengers. Upon reaching the lower wharf, he went on board the boat of the navigation company at that point, where he remained for some time, during which blasts were being fired. When he got to the lower boat, he heard blasting, and understood that blasting was being done. He went upon the boat, and was occupied for some 15 minutes in playing a game of cards, after which he talked to the steward for a few minutes, and then sat down in the forward part of tlie boat, and, becoming sleepy, either went to sleep, or dozed off in a state of partial sleep. In this situation he was struck by a rock thrown by one of the blasts, which broke through the upper-deck of the heat, striking him on the head or back of the neck, causing the injury complained of. The jury found for the defendants.
The grounds of the motion for a new trial are:
(1) Error of the court in instructing the jury as follows:
“In determining tlie question of negligence in tlie prosecution of tlie work of Wasting by the defendants, you must take into consideration the nature of the work being done, the time within which it was to be completed, the place where it was to he done, and the necessity of firing blasts at certain hours of the day, in order that the work might be completed within the contract time.”
(3) Error of the court in refusing to instruct the jury, as requested by plaintiff, that if there was an arrangement between the navigation company and the defendants, by which the former had permission to use the landing where the accident occurred, at its peril, this would not bind plaintiff.
The negligence complained of, and upon which plaintiff relied as the ground of his recovery, consists (1) in the failure of the defendants to cover their blasts before firing the same; (2) in their failure to give reasonable notice, or any notice, to the passengers that blasts were about to be fired; (3) in not delaying the firing of such blasts until such time as the boat had departed from the wharf, and was out of danger.
It is argued that the instruction that the jury might take into consideration the nature of the work being done, the time within which it was to be completed, the place where the work was being done, and the necessity of firing blasts at certain times of the day in order that the work might be done within the contract time, makes the case turn upon the question of the necessity the defendants were under of doing the work as it was being done in order to complete it as they had contracted to do; that a party has no more right to be careless or reckless of human life by a contract with the government than by a contract with an individual; that a party cannot relieve himself from' his duty to adopt measures of safety and protection by accepting such conditions in his contract as are inconsistent with any measure of prudence necessary to the safety of third persons. The principle thus stated cannot be gainsaid. A party who owes a duty in that regard cannot excuse himself for a failure to exercise ordinary care and skill, whereby another has been injured, by urging the necessities of his own situation at the time. But the term “ordinary care” is a relative term, always dependent on relationship and circumstances. 16 Am. & Eng. Enc. Law, 398. The term “negligence” has different meanings in relation to different causes of action. In some cases it means a very slight absence of care and prudence; in others, the absence of reasonable care; and, again, such want of care as makes gross negligence. Railroad Co. v. Woodruff, 59 Am. Dec. 72. Care is, undoubtedly, a relative term, or, rather, conveys a relative idea as to the degree necessary to be observed under circumstances. Railroad Co. v. Ogier, 35 Pa. St. 60. Want of ordinary care means nothing more than the failure to use those precautions which a just regard to the persons and property of others demands should be used under the circumstances of the particular case. The Farmer v. McCraw, 26 Ala. 189. And it has accordingly been held that it is the duty of a railroad company to exercise more caution and a higher degree of care when running their cars through a village or city than in the open country. Beisiegel v. Railroad Co., 34 N. Y. 622. “Ordinary care” depends upon the performance of a duty which one of the parties owes to the other, and this duty “arises out of the various relationships of life and varies in obligation
This principle is applied in Eisenberg v. Railway Co., 83 Mo. App. 91, where it is held that mere licensees, in the use of a road across private property, in making use of the license, necessarily assume all patent and obvious risks. It is also applied in the'case of Transit Co. v. Rourke, 10 Ill. App. 478. In the latter case there was an uncovered pit on defendant’s land, from which the accident and consequent damages claimed resulted. The deceased was upon the defendant’s land, without any invitation from the defendant. The facts, as stated in the opinion, appeared to be that many other persons “were in the habit of passing over said land, of their own motion, and for their own convenience,” without objection on defendant’s part; “but these facts,” the court says, “at the utmost, only raise an implication of a license to the deceased to do the same thing, but gave him no right beyond that of a mere licensee.” And in Railroad Co. v. Griffin, 100 Ind. 223, the court say:
“The owner of premises is under no legal duty to keep them free from pitfalls or obstructions for the accommodation of persons who go upon or over them merely for their own convenience or pleasure, even where this is done with his permission. In such case the licensee goes there at his own risk, and, as has often before been said, enjoys the risk with its concomitant perils.”
In this case there was no invitation by the defendants to the plaintiff or to the navigation company to go upon the premises in question. The latter’s passengers went upon these premises for their own convenience, and by the implied permission of defendants. Plaintiff contends that the premises were a highway; that the river has this character; and that it was the right of all" persons to pass up and down at this point; and that the defendants were obliged, at whatever inconvenience to themselves, to adopt all necessary precautions for the safety
The plaintiff had frequently made trips over this route before Ms injury. He testifies that he had gone “up and down there before,” “several times a year.” How long this work had been carried on does not appear. It appeared, however, that the work at that point was one of magnitude, and that it could only be prosecuted during the short season of extreme low water, beginning about November 1st, and ending early in January. Plaintiff says that, in passing there theretofore, he had never heard blasting. Nevertheless, he must have known, if not from observation, from common knowledge, that blasting was being done along the line of that work. It is common knowledge that tMs work, necessarily involving more or less blasting, had been going on for years. If plaintiff could, bv any possibility, have been ignorant of this, he was so under circumstances that have the consequences of knowledge; and, in passrng over these premises, he assumed the risk incident to the work as it was being conducted. He was not a trespasser, and his case was submitted to the jury on the assumption that he was rightfully where he was; but, in determining the “care” required of defendants, it was left to the jury to determine the measure of defendants’ obligation to the plaintiff by the circumstances of the case. It does not follow from the statement that plaintiff was rightfully at the place where he was injured; that an imperative duty was imposed upon defendants to look out for Ms safety, as would be the case if plaintiff had been upon his own premises or upon a public highway open to travel. He was rightfully there in the sense that he was there by sufferance, and was therefore not a trespasser, in which case defendants would only be liable for willful negligence. If plaintiff was rightfully there upon the implied consent of defendants, it was with the implied risk on his part of such dangers as were incident to the work defendants were engaged in, conducted in the manner usual, with the care ordinarily exercised under such circumstances.
The instruction complained of, by which the jury were allowed to take into consideration the magnitude of the work, etc., was with ref
I am of the opinion that the court erred in submitting the matter to the jury at all. There was nothing to authorize a finding of duty on the part of defendants to forego their usual work in (heir usual method. The covering of blasts was not required by ordinary care. It would have been extraordinary care, and so extraordinary as to be impracticable. And so of the failure of defendants to delay (heir blasts until after the departure of the boat. It appears that the (line when the boat would leave was uncertain. It sometimes happened (hat, arriving before 12 o’clock, she would not leave until after 2 o’clock, or until shortly before 3 o’clock. The defendants could not reasonably be expected to delay their work awaiting the uncertain movements of the company’s boats. The navigation company’s boat could, with small loss of time to herself and passengers, have remained down the river until these blasts were fired. It was usually about noon when she arrived at the locks, and she frequently arrived after that time, and probably after the firing was over. The rights of the boat and her passengers were, as we have seen, subordinate to those of the contractors. The boat never left for Portland until after 1 o’clock, and generally it was much later than that. If the down-river passengers did not care to take any risks from the blasts that were uniformly fired shortly after 12 o’clock, they could, with but slight if any inconvenience, have remained at the upper locks until after the blasts were fired. But, without this, the ordinary risks from this danger were assumed by them. They had no right to rely upon any such precautions as it is now contended defendants should have provided. There,was no question of negligence as to (he matters covered by the instruction complained of that the jury could properly consider, and the plaintiff cannot complain that the court submitted such question to them.
The plaintiff cites a number of cases in sunnort of his motion, bearing upon (lie question under consideration, among' them Beauchamp v. Mining Co., 50 Mich. 163, 15 N. W. 65, where it was left to the jury to find whether ordinary prudence and caution would have required the defendant to cover and protect the place from which blasts were to be fired, the case being one of injury from a mining blast. This was
“In none of these eases where negligence is alleged and proved could the answer he admitted that the profits of the business carried on would not justify the extra expense. It is not the matter of profit or loss that determines or enters into the question of care or negligence, but rather that of danger to the public or third persons. Were it otherwise,' an insolvent corporation would be comparatively safe, and an almost worthless mine might be carried on with an utter disregard of the rights and safety of others. If mining at a particular place cannot be profitably carried on, and at the same time the rights of third parties be respected and protected, then it must be carried on at a loss or abandoned.”
It will be noticed that the question is treated by the court as an attempt to excuse proved negligence on the ground of expense; but the real question was whether a failure to cover the blasts, under the circumstances of the case, was negligence or tended to prove it. The case was one where the defendant company and another company, the Stephenson Company, worked adjacent mines. Each company gave to its employés permission to erect and occupy dwellings on their respective lands. The plaintiff, who was working for the Stephenson Company, had erected a dwelling upon its lands. With its permission, a store was also maintained on its lands. The plaintiff’s son was injured by a blast from the defendant company’s mine, while going from the store to his home. The case was therefore one where an injury results to a third person, on his own premises, from the work of an adjoining owner; and it belongs in the category with those cases which hold that the act of throwing missiles on the land of another is clearly wrongful, and imposes upon the party the obligation of seeing to it that no injury results therefrom.
The case of St. Peter v. Denison, 58 N. Y. 416, relied upon by plaintiff, is a case where a contractor of the state, in blasting for a canal, threw frozen dirt upon the land of plaintiff, where the latter was in the enjoyment of his property, and without warning of the blast, whereby plaintiff was injured. It was held that the throwing of débris by blasting in this way was an intrusion upon plaintiff’s land, and that this is equally as wrongful as a permanent appropriation of the land would be, and that, having no right, it is no matter whether or no defendant made his invasion without negligence; that the defendant was bound either to adopt such precautions as would prevent such missiles from reaching the place where the plaintiff then was, or to give him personal and timely notice of the setting off of such blast; that.“the plaintiff was of lawful right where he was, and had the right to assume, until personal notice or knowledge of the contrary, that others would not unlawfully intrude upon him.” The case cited is not one of negligence, but of unlawful intrusion upon the premises of another. The duty resting upon the defendant to guard against injury from his wrongful intrusion was absolute. It was not a case of reasonable care in blasting or in giving notice. The act of throwing missiles upon the land of the adjacent owner was in itself wrongful, and it imposed upon the defendant the obligation of seeing to it that no injury resulted therefrom. Reasonable precaution as to notice, or reasonable
Another ease relied upon in support of this motion is that of Wright v. Compton, 53 Ind. 337. But that case, like the one just considered, did not involve any question of negligence. It was a case of blasting near a public highway, whereby a person (raveling on the highway was injured. The court says:
“Tice cines lion involved is not one of negligence on llie part of the defendants. The act charged against them is in itself unlawful; not the act of blasting and quarrying rock, but the act of casting fragments of rock upon the plaintiff, to his injury.”
The court lays down the rule that “the public travel must not be endangered to accommodate the private rights of an individual.” The question is considered in this tase as one involving an unlawful use of the defendants’ property, to the injury of third persons in the enjoyment of their property. It is put upon the grounds of the decision in tit. Peter v. Denison, that what is complained of is a nuisance, — an unlawful intrusion upon the property of oihers. And so the court, quoting- from Hay v. Cohoes Co., 2 N. Y. 159, says:
“A. uuui may prosecute such business as lie chooses upon his promises, but he cannot erect a, nuisance to the annoyance of the adjoining proprietor, even for the purpose of a lawful trade. He may excavate a canal, but ho cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that, mode of using Ms properly, or be held responsible for all the damages resulting therefrom, lie will not be permitted to accomplish a legal object in an unlawful maimer.”
And the conclusion is reached that:
“If the defendants cannot work their stone quarry without endangering the safety of travelers on the highway, they must abandon it, or answer in damages for the injuries thus done.”
So, too, of the case of Colton v. Onderdonk, 69 Cal. 156, 10 Pac. 395, also cited in support of the mo (ion. In that case the owner of a lot situa ted in a large city, contiguous to the dwelling of another, blasted out rocks on his lot, to the injury of Ms neighbor. Tt was held that such a use of properly is unreasonable, unusual, and. unnatural, and no care or skill exorcised in the use will excuse the owner from liability for the resulting' damage.
In all these cases the obligation to make compensation is an absolute one. The law declares that one man shall not improve his own property by the employment of dangerous agencies, to the injury of Ms neighbor; and, whether he exercises the utmost care, the resuit is the same. Admitting that the same rule applies where the government is a party, yet it cannot be invoked when the injured party
It is contended that the jury should not have been permitted to consider whether there was contributory negligence on plaintiff’s part; that there was nothing tending to prove such negligence. I am of the opinion that there was such testimony in the case. From what has already been said, enough appears to authorize a finding that plaintiff knew, from previous acquaintance, the nature of the work done at the locks and the risks attending it; that he knew that blasting was being done there, and the manner of such blasting; and that he knew that the boat did not leave the wharf until after such blasting at the noon hour. But, without this, it appears that plaintiff was warned of the blasting by the noise of the blasts, and by information which he had. He testifies that, when he got to the boat “at the time of the hubbub of the people getting off the boat, there was blasting at that time,” so he “understood”; that he “heard some noise,” and went in and sat down; that then, after the passengers going up stream
In addition to these considerations, I am of the opinion that there is nothing in the case tending to prove negligence on (he part of defendants, contributing to the injury; that there is nothing to warrant the conclusion that the blasts should have been covered, or that defendants should have postponed their work of blasting until the navigation company’s boat left on its trip; and that the question of a warning cry that blasts were to he fired is immaterial, since the plaintiff was otherwise warned, and had knowledge. The feeling of security which his conduct manifests was certainly not due to lack of notice, hut: appears to have been due to his indifference to what was taking place. The motion for a new trial is denied.