193 P. 296 | Ariz. | 1920
This action was brought to recover damages for personal injuries sustained by the plaintiff on the twenty-fourth day of December, 1918, he having been struck by a stone that came from a blast set off by the defendant. The gravamen of the complaint was negligence, and the breach of duty alleged against the defendant was its failure to give plaintiff any notice or warning of the blast. The charge is couched in the following language:
“The defendant, without any notice or warning to the plaintiff, caused or permitted a high charge of said gunpowder, dynamite, blasting powder, or other high explosive to be discharged.”
The defendant’s answer denied each and every allegation in the complaint, setting forth negligence on the part of the defendant, and affirmatively alleged that plaintiff’s injuries were the. direct result of his own careless and negligent act. At the close of all the evidence in the case the defendant moved the court for a directed verdict, but the court denied the motion. This was error. The undisputed testimony, without conflict, establishes the following facts:
That at the time of the accident the defendant, Twohy Bros. Company, was engaged in the construction of a railroad roadbed for the United Verde Tunnel Smelter Railroad Company near the town of Jerome, Yavapai county, Arizona; that in the construction of the roadbed it was necessary for the company to carry on blasting operations, which the company was doing when the accident happened; that between 4 and-5 o’clock on the day of the accident the plaintiff, Peter Kepon, and one Mike Racich, were returning
In Shearman & Redfield on the Law of Negligence, volume 3, paragraph 688a, it is said:
“Of course, a person who is warned that a blast is about to be made cannot voluntarily remain in a place of danger without losing ’ his right of action if injured” — citing Sullivan v. Dunham, 10 App. Div. 438, 41 N. Y. Supp. 1083; Graetz v. McKenzie, 9 Wash. 696, 35 Pac. 377.
Certainly, if he cannot voluntarily remain in a place of danger after being warned, without losing his right
A case far less clear would suffice for the dismissal of the complaint. It is apparent upon the record that the plaintiff was timely warned of the impending blast, and that his injury was due to his own negligence and reckless act; hence he could not recover. Where the whole testimony and all legitimate inferences therefrom show that plaintiff was injured by reason of his own want of ordinary care, the question of his negligence is for the court, and not for the determination by the jury. Calumet & Arizona Mining Co. v. Gardner, 187 Pac. 563.
The judgment is reversed, with directions to dismiss the complaint.
CUNNINGHAM, C. J., ard EOSS, J., concur,