Durham County NcArchives Court.....J. G. Latta Et Al, Rebecca J. Gates V. 1895
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Source: Nc Reports
Written: 1895

Rebecca J. Gates v. J. G. Latta et al
September Term, 1895

Action for Damages - Blasting Rock - Warning to Passers By - Negligence

When a servant in blasting rock failed to cover the blast or take other usual 
precautions to restrict within safe limits the flight of the blasted rocks, 
and gave no notice sufficient in time for a person walking on a road near by 
to retreat from danger, it was negligence in such servant and he and his 
employer are responsible in damages for injury to such person.

Action for damages, tried before Green, J., and a jury at March Term, 1895, of 
Durham Superior Court. There was a verdict for the plaintiff and from the 
judgment thereon the defendants appealed. The facts appear in the opinion of 
Chief Justice Faircloth.

Messrs. W. A. Guthrie and Boone, Merritt & Bryant for plaintiff
Messrs. Shepherd, Manning & Foushee, for defendants (appellants)

[NC Supreme Court]
Faircloth, C. J.: The defendant Latta, as the employee of the defendant Geer, 
was engaged in blasting rock in his mill race near the public county road, 
where it crosses the river Eno, and the plaintiff was walking along said road 
when the injury occurred, about dusk, about 100 or 150 yards from the dam. 
When the blast went off a five pound piece of rock struck the plaintiff and 
broke her arm. They were each engaged in a lawful business, and the question 
of negligence depends upon the manner or method in which they exercised their 
rights. The burden was upon the plaintiff to prove to the satisfaction of the 
jury that she was injured, and that she was injured by the negligence is 
relied upon as a defense in the answer, the burden of proving it to the 
satisfaction of the jury is upon the party pleading it. Acts 1887, Chapter 33. 
The issues submitted were:

"1. Was the plaintiff injured by the negligence of the defendants or either of 
them? Ans. Yes.

"2. Did the plaintiff by her own negligence contribute to her injury? Ans. No.

His Honor instructed the jury that if the defendant set off the blast when it 
was dusky dark without giving any warning, this would be such negligence on 
his part as would make the defendants liable. There was conflicting evidence 
as to whether the defendants did give an alarm, but, from the verdict on the 
first issue under the above instruction, we are to take it that no danger-
notice was given, and that was assumed as a fact on the argument before us. 
Under the facts and circumstances of this case we think it was the duty of the 
defendant to give notice, and that his failure to do so was negligence. 
Sometimes the blast is covered, or by other means the flight of the dangerous 
parts is restricted within safe limits, and notice is not necessary, but in 
the absence of such precautions a notice, sufficient in time for those near by 
to make their retreat to a safe place, is a reasonable requirement.

It was so held in Blackwell v. Railroad, 111 NC, 151, a case similar to the 
present, where there is a full discussion of the subject and we refer to it 
without repeating it. It was conceded on the argument that if the facts and 
circumstances of this case made it the duty of the defendant to give notice of 
the blast, then he was liable, and having held that such was his duty we need 
not further examine the instructions, unless we could find some manifest error 
calculated to mislead the jury in a material manner, which we do not. The duty 
of giving the danger notice in similar cases has been held in other states. 
Wright v. Compton, 53 Indiana, 337; St. Peter v. Nenison, 58 NY, 416; 51 Am. 
Dec., 279, n.

No Error - Affirmed

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