Fox v. Borkey, 126 Pa. 164 (Pa. 1889)

Opinion,

Mr. Justice Mitchell :

This is one of those verdicts, unfortunately too frequent, which are dictated by the sympathies and not by the common sense of juries. According to the plaintiff’s account, a perfectly healthy young woman was reduced to a physical wreck by the grossly negligent, if not intentional, misconduct of the defendant. It was a case that called loudly for exemplary

damages, if fox any, and yet tbe jury gave but $900. It is manifest that the jury themselves did not believe in the plaintiffs case, but on the communistic principle that as somebody was hurt, somebody else, right or wrong, ought to pay for ii, rendered a verdict which in no possible view of the case, did justice to either party. It is the duty of courts to handle such cases without gloves.

There was no ground upon which the plaintiff should have been allowed to recover at all. There was no negligence on the part of the defendant; the injury was not the natural or proximate result of the act complained of; and if it had been, the plaintiff herself was guilty of the plainest contributory negligence in subjecting herself to the risk of it.

The defendant was in the exercise of his legal rights upon Ms own land.- His motive therefore is not relevant or material, unless he exercised his rights in a negligent or unlawful way. Of this there is not a word of evidence in the case. True, Ms conduct was not handsome or amiable, but that of the plaintiff’s husband was not much better, and neither was a legal cause of action, nor had anything to do with the case. Not a single word of testimony is given on the plaintiff’s side to show that the blasting by defendant was done in an unusual, or dangerous, or negligent manner. On the contrary, the only witness whose testimony bears at all closely on this point, Dumn, testifies that the cartridge was of ordinary size and strength, and that the distance from where plaintiff was to the blast, would be considered by those engaged in the occupation of blasting, as a safe distance to retreat, when about to explode such a cartridge. Oil this branch of the case alone, the plaintiff should have beeLi noLisuited at tbe close of tbe evidence on ber side.

But there was no evidence beyond a scintilla, if that much, that the injury complained of could have been foreseen or expected, as aLL ordinary, or natural, or proximate result of the defendant’s act. The plaintiff was not struck by anything. Her husband says, “fine dirt flew over us, like drizzling or hailing,” but plaintiff herself says she saw Liothing of that kind and noLie fell on ber. Tbe sole cause alleged for tbe injury was the noise and eoncussioLL of tbe explosion, which plaintiff says was “a veL-y severe blast.....a bard blast, a very bard blast,” and her husband, that “ there was an explosion

that the earth trembled.” The two children, being healthy country boys, though only one and four years old respectively, do not seem to have been at all disturbed. This is all the testimony there is on the unusual or extraordinary character of the shock, and though one physician did gravely testify that the explosion of a six-inch cartridge of ordinary forty-five per cent dynamite, between two tons of rock half embedded in the ground, could so bounce the solid earth as to concuss the spine of a woman eighty yards off, who did not remember whether she was sitting or'standing at the time, yet one specimen of expert testimony, as thin as this, was not enough to carry such a case to the juiy.

Lastly, the' plaintiff was in the most culpable degree negligent herself in staying after the first blast. The testimony of defendant, called for cross-examination as a part of plaintiff’s case, was that both blasts were by cartridges of the same kind, but whether they were or not, the plaintiff had notice by the first of what defendant was doing, and she neither went away, as a person of her nervous temperament ought in prudence to have done, nor even notified the defendant of the serious consequences to her which his acts might produce. That she accepted her husband’s supposition that defendant would not blast again, or blast only the small rocks, was her misfortune, certainly not the defendant’s fault.

In remaining after warning in a place which her exceptional temperament made dangerous to her, she accepted the risk.

The defendant’s request for a peremptory instruction to find in his favor should have been granted.

Judgment reversed.