, 1892-07-02

9 complaint made the negligence,
4-4rfudence and careless management of
the giant powder Of the appellants the gist
of the action, but the only evidence going
to sustain those allegations was that the
rock, If it came from appellants works,
was thrown horizontally between $40 and
1900 feet.
Under these circumstances the court took
from the Jury the entire question of negli-
gence by the following charge
"Under the evidence in this case the only
question for the jury to determine in order
that they should find for the plaintiff, is
this: Was the death of George Klepsch
caused by the act of the defendants or the
act OF their servants or employees. There is
nothing for the jury to find in this case
upon the question of negligence. If the
rock which wounded the deceased came
from a blast discharged by the defendants,
or their servants, and that wound was the
cause Of his death, then your finding should
be for the plaintiff"
Appellants complain of this charge, and
we think with Just cause. Respondent
cites as a precedent for this charge, Munro
VS.. Pacific Coast &c Co., "a Pac. Rep. (Cal)
BOB, the facts of which perhaps bore out
the language used as it was stated in the
opinion that:
"The uncontradicted testimony showed
a clear case of explosion in the city where
many persons were living, and where such
an explosion could not take place without
strong probability of It's injuring some
One."
The circumstances of that case seem to
have been such that the act Of blasting
with dynamite or other high explosive at
that place was regarded by the court as
per Sc a nuisance, and therefore unlawful
So, in this case, if there had been facts be-
fore the jury such as to warrant the court
to instruct as to nuisanCes, and that an
unlawful use of explosives might be found,
then the conclusive presumption would
have arisen against the appellants if they
cast the rock But neither the complaint
nor the evidence claim or pretend to show
that it was unreasonable for the appellants
to use the blasting powder in the place
they used it, and for the accomplishment
of the work they were doing. Indeed, from
the point whence respondents witnesses
say this rock came, it was nearly or quite
400 feet to the line of appellants own
premises at the point nearest the house of
klepsch. Negligence was, therefore, made
the basis of the action in the complaint,
negligence had to be proven, and the jury
should have been permitted to say whether
there was negligence or not. The ap-
pellants conceded at the trial that the
mere fact that the rock was blown to so
great a distance and of the appellants
premises might be taken as prima faCie
evidence of negligence in the management
of the blast, which if not rebutted would
U6 oul4ClCub W bL5bdlll d N6IulCbs 1ulS COu"
cession was made under protest, and ap-
pellants do not now admit it to be good
law. But we think that it should be the
law of such cases, where the agency nsed
is of a nature SO dangerous, and where
every trace of the material used and the
methods employed are usually blown out
of sight and beyond all possibility of proof
except by witnesses who will be naturally
unwilling if not hostile.
Respondent has cited us to the leading
English case of Fletcher vs. Rylands, 3 H
L. $50, which is reported inf full in 1 Thomp-
son on Negligence 2, and strenuously
argues for its adoption as the rule of de-
cision in this case. Fletcher VS.. Rylands
is not an old case at all it was finally de-
cided in 1868, and there are many cases in
this country of equal Importance which
hold otherwise, and are of earlier as we'll
as later date. The principle there an
nOunced was that 'the person who for his
own purpose brings on his land and col
lects and keeps there anything likely to do
mischief if it escapes, must keep it at his
peril, and If he does not do so is answera-
Bile for all the damages which are the
natural consequences of its escape; and
although harmless to others so long as it is
confined to his own property, will be
obliged to make good the damages which
ensue if he does not succeed in so contn-
ing it,"
That was an application to the storage Of
water of the same rule of liability to which
owners of live animals are subjected upon
their escape, which is a rule never adopted
in this country as applied to inanimate
property. On the contrary, with few eX-
ceptiOns, in America, if one builds a dam
upon his own premises, and thereby
accumulates water for his own benefit, or
If he brings water upon his own premises
into a reservoir, in case the dam or reser-
Yoir. give away and the land of his neigh
Dor is flooded, he is not liable for damage
without proof of some fault or negligence
on his part. Pixley VS. Clark, 35 N. Y. $40.
Sheldon VS.. Sherman, AZ N. Y. 484. Gould
on Waters SIS 296-7-S. Wood on Nuisances,
p. 1874.
The same pri nciple was the basis Of the
decision in the case of fire set out by a
railroad locomotive in COlambia &c. r. r.
Co. VS.. Harrington, Wash. 202. But there
is also cited to us line of blasting cases
where negligence was presumed, and the
defendants were not allowed to show due
care in the manner of conducting the opera
tlons. These are Hayes vs.. Cohoes Co., 2
N. Y. 159, Tremain VS.. CohOes Co., Id.
Carman VS.. SteubenYille r. r. Co., Ohio
st. 399. Railway Co. VS.. Eagles, 8 Colorado,
544
But one of these Wright VS.. Campton)
was for injuries to the person; all the Others
were for injuries to real property from
casting rocks and earth thereon. All Otthe
subsequent ones cite the COhoes cases with
approval. But the New York court of ap-
peals has limited those cases which were
decided upon literal construction of the
maxim sic utere tue ut alieum non laedas
In Losee VS.. Buchanan, 81 n. Y. 476, il
was said that "the damage in the Cohoes
cases was the necessary consequence Of
just what the defendant was doing" II
was no accident, which is none the less an
accident because it comes from negligence
which is not wilful or malicious. And in
Hays US, Cohoes Co.. even, the decision