#### James Miller, Respondent, *v.*John Twiname, Appellant.

Second Department,

December 30, 1908.

Negligence — injury by blasting — pleading — complaint not charging nuisance — rights of contractor constructing highway—evidence — manner of conducting blasting — control of highway for purposes of repair — when nuisance question of fact — costs — extra allowance.

The blasting of rock on private premises in a sparsely settled neighborhood remote from houses, does not of itself constitute a nuisance.

Where a plaintiff injured by such blast alleges that he entered upon the defendant’s premises for the purpose of delivering coal and that being warned that a blast was about to be fired, ran upon an adjoining highway which the defendant was constructing as a general contractor for the town, the liability of the defendant depends upon whether he used reasonable prudence and care to protect the plaintiff from unreasonable and unnecessary exposure to danger.

Hence, it was error to exclude evidence by the defendant showing the location of the quarry, its surroundings and the circumstances attending the blasting.

Under the circumstances it was error to charge that in case the negligence of the plaintiff did not contribute to the accident, the defendant, no matter how careful he may have been, was liable for injuring the plaintiff while on the highway. This, because under the complaint the action was not founded upon nuisance or trespass.

Assuming, however, that a cause of action for nuisance was alleged, the plaintiff was nota traveler upon a highway, it being under the control of the defendant for the purpose of construction; and in such case the rule that one who by blasting throws material upon adjacent lands is liable for the resulting damage, does not apply.

Hence, it was error to refuse to permit the defendant to show that he had erected signs stating that the road was closed for .repairs.

Even if the complaint be deemed to have alleged the maintenance of a nuisance, the existence of the nuisance under the circumstances was a question of fact, not of law.

In such action an extra allowance should not be granted.

Appeal by the defendant, John Twiname, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of June, 1908, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 10th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*624*William L. Rumsey [Robert E. Farley*with him on the brief], for the appellant.

*Bernard H.*Lord, for the respondent.

Rich, J.:

The defendant is a general contractor, and in 1907 had a contract with the town of Harrison, Westchester county, to build 19,000 feet of highway macadam. In October of that year he had possession of a highway leading from Silver lake to Rye lake, in that town, for the purposes of his contract, and was engaged in macadamizing its surface. He leased a stone quarry on land adjacent to the highway, from which he was taking the stone necessary for such work, which was loosened by blasting. The photo graphs in evidence disclose that the quarry, where blasting was being done, was in a sparsely settled neighborhood, remote from houses. Defendant purchased some coal for use in his work at White Plains, some three or four miles from the quarry, and the plaintiff, an employee of the coal dealer, was sent to deliver it. He drove with his load upon the premises, and while engaged in shoveling the coal out of the wagon, learned that a blast was about to be fired at the quarry. He ran into the highway in process of repair, a distance of 150 or 200 feet, when a stone, dislodged by the blast, struck him, causing the injury complained of.

The complaint alleges that at all the times therein referred to the defendant was engaged in the business of breaking up stone and rock by means of dynamite or other explosives in the town of Harrison ; that on or about the 8th day of October, 1907, while the plaintiff *“*was lawfully in the act of delivering a load of coal at or near the place where defendant was at work, the defendant through the negligence, carelessness, recklessness and *wrongful acts*of his servants or agents, caused or permitted an explosion or eruption to occur causing a shower of stone, rock or other hard substance to be thrown up and scattered around, a part or portion of which struck and seriously injured this plaintiff,” and “that said accident was caused through no fault of plaintiff but solely through the fault, negligence, carelessness *and vrrongful aot*of the defendant, his servants or agents.” The words italicized were added by amendment.

*625When plaintiff rested the defendant moved for a nonsuit, and at the close of the evidence renewed such motion and asked for the direction of a verdict, upon the ground that the complaint did not state a cause of action for nuisance, and that plaintiff had failed to prove the cause of action alleged. The motions were denied, and exceptions taken.

The learned trial justice refused to allow the defendant to give any evidence of the locality of the quarry and its surroundings, or the circumstances attending the filing of the blast, holding that the complaint stated a cause of action for a trespass or nuisance ; that the plaintiff was trying his action upon that theory, and no amount of care that the defendant exercised in the operation of the quarry or thé discharge of blasts would relieve him from liability, unless the plaintiff was guilty of contributory negligence; that the plaintiff was upon a public highway at the time he was struck, and under the decision of *Sullivan*v. *Dunham*(161 *N.*Y. *290)*that fact made it “ a nuisance, no matter how much care was exercised in discharging the blast.” He charged the jury that the defendant was liable “for the injuries that the plaintiff received at that time provided the plaintiff did not contribute to bring about the accident by any careless or negligent act or omission on his own part. * * * So that the only question in this case for your consideration and determination is whether the plaintiff, after he learned that a blast was to be discharged, exercised reasonable care for his own protection and safety. * * * While the defendant had a perfect riglit to occupy those premises, as he did, and discharge blasts and break up a stone, yet the law says that he is liable for any injury done to any passerby or traveler upon the public highway by a piece of stone that may be thrown by the blast, no matter how careful he may have been in the occupation of the premises and in the preparation and setting off the blast. Ho matter what safeguards he used, or how cautious and prudent and careful he was, he is liable for the damage done by a stray piece of stone that found its way out upon the public highway and caused injury.” To these instructions the defendant excepted and requested the court to charge “ that the plaintiff was not a traveler or passerby upon a public highway within the meaning of the rule,” which was refused and exception taken. These exceptions *626present reversible error. The case was submitted to the jury upon the theory that the plain tiff was a traveler upon the highway. There is no allegation in the complaint to that effect. On the contrary, its averments are to the substantial effect that while the plaintiff was delivering a load of coal to defendant, upon premises occupied by the latter, and on which he was conducting his alleged business, he was injured. Although it is alleged that such business was the blasting of rock by the use of dynamite, the blasting of rock on private premises does not of itself constitute a nuisance. *(Booth*v. *R., W. & O. T. R. R. Co.,*140 N. Y. *267.)*The case presented by the pleading was that of the entry upon defendant’s premises, for a business purpose, by invitation, and an injury suffered while there through the negligence and wrongful acts of defendant’s servants. The liability of the defendant upon the cause of action alleged was dependent upon the question of whether reasonable prudence and care were used to protect the plaintiff from unreasonable and unnecessary exposure to danger. The measure of defendant’s duty was reasonable prudence and care *(Flynn*v. *C. R. R. Co.,*142 N. Y. 439), and the exclusion of the evidence offered by defendant upon this subject was error.

Assuming, however, that the allegations of the complaint sufficiently presented a cause of action for nuisance or trespass, the judgment cannot be sustained. The "plaintiff was not a traveler upon a public highway at the time he was injured, within the rule declared in the *Sullivan Case (supra).*While it is true that he was in the highway limits when struck by the stone, it is equally true that the highway was in the lawful possession of the defendant for the purposes of excavation, filling in and macadamizing its surface. He had the right to use it in connection with the quarrying of stone on the leased adjacent land for that purpose, and to have the material excavated from the quarry thrown into and upon it, and he should have been permitted to show that signs giving notice to the public of its closing for repairs were placed there, and of his possession of it. The fact that the piece of stone which struck plaintiff was thrown from the quarry into the highway, under the circumstances disclosed by the record, did not render the defendant liable for trespass. The rule that one who by blasting throws rock and material upon the adjacent land of his neighbor *627is liable for the damage resulting from such act, has no application when the person blasting has the right to the use of the land upon which the blasted material is thrown. A cause of action for trespass was not established by the evidence.

The trial court determined, as matter of law, that the blasting resulting in the injury was a nuisance. This was the effect of his rulings and charge. In this he was in error. Where, as in this case, the natural tendency of the act complained of is to create danger and inflict inj ury upon person or property, it may properly be found a nuisance as matter of fact, but cannot be so determined as matter of law independent of the attending circumstances. *(Melker*v. *City of New*York, 190 N. Y. 481.) In this case as in that, the circumstances do not call for the hard and fast rule of a nuisance as matter of law, but for the judgment of a jury, based upon the surrounding and attendant circumstances, as to whether the occurrence was or was not a nuisance as matter of fact.

The granting of an extra allowance was erroneous. *(Standard Trust Co.*v. *N. Y. C. & R. R. R. R.*Co., 178 N. Y. 407.)

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment and order reversed and new trial- granted, costs to abide the event.