Cary Bros. & Hannon v. Morrison

Citations

• 129 F. 177
• 65 L.R.A. 659
• 1904 U.S. App. LEXIS 4032

Syllabus

<p>1. Explosives — Blasting—Right to Use to Gbade Raileoad.</p> <p>Blasting by the use of gunpowder or dynamite is an appropriate and justifiable mode of removing rock from the right of way of a railroad in order to bring it to grade, and a railroad company or its grading contractors may lawfully employ it, with reasonable care.</p> <p>2. Same — Thbo wing Rocks upon Neighbobing Pbopeett — Wabning.</p> <p>While a contractor may lawfully use blasting with gunpowder or dynamite to remove rock in the right of way of a railroad company, he has no right by its use to throw rocks upon persons rightfully occupying or using neighboring property. Such an act is a trespass, and it is his duty to give such persons reasonable warning of coming explosions.</p> <p>3. Same — Unheeded Wabning — Contbibutobt Negligence.</p> <p>It is the duty of one who is lawfully using property near to that upon which another is legally engaged in blasting, and who is warned of a coming explosion, to use reasonable diligence to escape from danger on account of it; and a failure to exercise such care, which concurs in producing his injury, waives his right of action for the trespass, and constitutes contributory negligence, which is fatal to his action for damages for the injury.</p> <p>4. Contbibutobt Negligence — Question eob Juey — Exception.</p> <p>The question whether or not one is guilty of contributory negligence is ordinarily for the jury. It is only when the facts which condition the question are stipulated, or are established by testimony which is free from substantial conflict, and the inference from the facts is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it, that the question of contributory negligence may be lawfully withdrawn from the jury.</p> <p>5. Explosives — Blasting—Contbibutobt Negligence — Question fob Juby.</p> <p>The defendants were lawfully engaged in blasting rock out of the right of way of a railroad company at a po