, 1892-07-05
SPOKANE REVERSED
Concluded from Saturday, J

was also decided on the ground Of nu
sance, the court saying that there was n
proof that the injury was not the una
voidable consequence Of blasting in tina
particular locality"
In Railway Co. VS.. Eagles the iudgmen
was sustained because the acts cOmplaineC
of were the natural and probable results 0
blasting at the locality.
Wright VS.. CamptOn was a persona
damage case, the plaintiff having been in
jured by rocks blasted from a quarry nea
public highway. The dicta of the deci
sion show a misspprehension of the Co
hoes cases, though the decision was righ
because the question Of liability was left Il
hinge ON whether warning had been giVer
of the impending blast at place where tC
blast at all was a nuisance.
So in st. Peter vs.. Denison, 58N N. Y. 416
where the blasting was so close that eacE
time blast was set of it was the habit o.
the blasters to give notice; but there was
failure to notify plaintiff in the particu
lar instance and he was injured by the fal
of quantity of frozen earth this was an
other case where the natural and probable
consequence of the blasting at that place
was to throw the earth upon the plaintiffs
land, and injured him personally unless he
were warned.
Losee v. Buchanan. 81 N. Y. 476, con.
tains thorough and exhaustive review OF
these and other cases as applied to sta
tiOnary boiler explosions with the conclU-
sion that the question of liability de-
pended on the finding Of negligence as a
fact: and as applicable to this case the
rule is laid down more strongly still in
Heeg v. LIGHT, 80 N. Y. $40, where one
who constructed a powder magazine on
his premises was sued for damages to real
property accruing from an explosion of the
powder in store. The material facts of
that case are made clear only by reference
to the report in 16 Hun. 257. The plaintiff
requested the court to charge "that the
powder magazine was dangerous in itself
to plaintiff and his property and was a
private nuisance, and the defendant liable
to the plaintiff whether it was carelessly
kept or not" This the court refused and
did charge that the jury must find for the
defendant, unless they found he carelessly
and negligently kept the gunpOWder on his
premises. The general term of the su-
preme court affirmed this action; but the
court of appeals reversed OH the ground
that while the request to charge was too
broad, the charge given was too limited,
and directed that on the new trial the
danger arising from the locality where the
powder was kept should be submitted to
the jury; that is, whether the place of
storage was such as to make the keeping of
powder there a private nuisance. See
Hunter V. Farren, II Mass 481. Wood on
nuisanCes s140.
We hold, therefore. that in this case. as
unlawful the liability of the appellants
depended upon whether they were negli-
gent or not to prove which, under the Cir
cumstances, the fact of the injury was suf-
ticient prima facie evidence; but that they
should have been permitted to show due
care on their part, and that the question of
their negligence was for the jury.
2. The only evidence in this case which
tended to support the allegations of dam
age was that deceased was husband of the
plaintiff, that they had three children who
were left dependent on plaintiff, and that
for period of two weeks cut Of seven in
which they had resided in Spokane Falls
deceased had earned six dollars day as a
bricklayer.
This action was probably brought with
reference to the code of 1881, S717 which
we held not to be an existing statute in
Graetz v. Mckenzie, % Pac. Rep. 331 but
the allegations of the complaint were as
good to maintain an action under S. as
under SIT.
Paragraph of the complaint stated no
matter material to the action, as neither
the right to recover nor the amount of re-
covery depended in the slightest upon the
pecuniary condition of the plaintiff. But
1t was incumbent upon plaintiff to allege
and prove her damages specially. She al
legged damage in $5, 600, and recovered that
sum without sufficient evidence to sustain
it.,
iAAS SaoO Wuo u41Dug anu l8 dIkubu ltI6
upon the theory that the statute which
says that the personal representative may
maintain an action for damages against
the person causing the death Of his de-
Cedent, and that in every such action the
jury may give such damages, pecuniary
ana exemplary, as under all circumstances
of the case may to them seem just, means
that the recovery is to be for causing the
death, rather than for damages, (that is
Tor what the benehciaries have suffered the
loss OF, and that upon proof of the death
by the unlawful act or neglect of another
the jury are at liberty to award whatever
sum they can agree upon without reference
to any proof Of pecuniary damage. To
support this theory number of cases are
cited to us from California, of which the
leading one is BeesOn V. Green Mt. G. NJ
Co., 81 Cal, 20, wherein it has been held
that substantially such a construction Of
the statute Of that state is the correct one.
A much stronger case supporting that view
is Matthews VS.. Warmers Admr % Grat-
tan $40. The statutes there construed
authorize the jury to give such damages
as "under all the circumstances of the
case may be just" Cal. Code Civ, Proc
No 3l1, or such damages as to it may
seem fair and JUST" code of Va. 1873 ch
145. Our statute does not have the limiting
clauses of Lord Campbell's act, which was
parent of all the legislation on this subject
but neither is it as bare and unqualified as
II ID DdIo anu uuQudllu6Q as GlOSe ABOVE
quoted. In most Of the states the langu-
age is "such damages as they may deem
fair and just with reference to the pecuni-
ary injury resulting from such DEATH"
Our statute contains the words "pecuniary
or exemplary" and they are 'entltled to be
considered and have their proper weight.
Constituting them, we do not understand
that in every case both pecuniary and ex-
emplary damages are to be given; but that
in proper case, as where the injury oc-
ours through accident procured by some
neglect, the damage is limited to pecu-
mary loss, whereas, in cases of injuries
caused by moral or legal wrong, amount
ing to Wllfulness, exemplary damage may
be added.
This construction is fair, and is the only
one that will place our law in harmony
with those of England, and all of the
states but four or five, where recoveries of
this nature are limited to some reasonable
basis Of allegation, proof and actual in
jury. Ven Brunt q Cincinnati, &c R. R.
Co., (Mich.) A N. Wa 321 Hurst VS.. De-
trOit (Mich.) 48 N. W. "A. ChareboIs VS..
Gogebic &c r. r. Co. mich } 81 N. w. 812.
Mynning VS.. Detroit &c R. R. Co., SO
Mich. 257.
3. Under the meager allegations of the
complaint it was error to allow plaintiff to
testify as to her children when objection
was made. The defendant had no such Op-
portunity to meet such matters.
4. Inc court com mltted no reversible er-
ror in refusing a view of the premises
where the injury occurred, thought would
seem, from the testimony, that such view
might have been of advantage to the jury
in coming to proper conclusion. 1t was
entirely in the discretion of the court to
grant or refuse the request.
With competent evidence to sustain it
we think the seventh instruction given by
the court would be a proper one. We dc
not see in it any suggestion to the Jury
that they might consider either the suffer
ings Of the deceased, or the sorrow or pov.
erty of the respondent or her children, OF
other sentimental loss.
6. The instruction numbered nine in.
forming the jury that they might consider
the relations of the narties and Witnesses