Driscoll, administratrix, v. Newark and Rosendale Lime and Cement Company

*Driscoll, administratrix, v. Newark and Rosendale Lime and Cement Company. Lieénse.—Negligence. The habitual use of a foot-path across another’s land, for many years, without objection, raises the presumption of a license. It is the duty of persons engaged in blasting to give notice to passers-by; anatheir omission to do so, is properly submitted to the jury on a question of negligence. Appeal from the general term of the Supreme Court, where a judgment entered upon a verdict in favor of the plaintiff' had been affirmed. This was an action by Ann Driscoll, administratrix of Cornelius Driscoll, deceased, against the Newark and Losen dale Lime and Cement Company, to recover damages, under the statute, for the negligent killing of the plaintiff’s intestate. The facts are sufficiently stated in the opinion. At the close of the testimony, there was a motion for a nonsuit, which was denied, and an exception taken. And the jury having rendered a verdict in favor of the plaintiff, and the judgment entered thereon having been affirmed at general term, the defendants appealed to this court. [MAJORITY — Woodruff, J.] Woodruff, J. The intestate was not a trespasser, ■whether killed when he was on the defendants’ land, or on the land whereof the fee belonged to his employers. The habitual use of the foot-path across the quarry-lots, for many years, without objection, warrants a finding of license from the defendants t-o cross their land to go to his house. Indeed, if no such license is tó be inferred, the judge could not, upon the evidence, have nonsuited, on an assumption that the intestate was on the defendants’ land when hit. That is in great doubt, upon the evidence, and if the defendants wished that question to be submitted to the jury, it was probably left to them, as the charge is not given in the case, and no exception was taken thereto. When picked up, it would seem most probable, that he was not on the defendants’ land, and if they deemed it material, it was for them to prove that he was there, when struck by the flying stone. The only other grounds for nonsuit were: 1. Whether it was negligence in the intestate to be where he was, at the time when he was injured. 2. Whether the defendants were guilty of negligence in the conduct of their business on their own premises, and where they had a right to carry it on. They are certainly not liable, on the mere fact that the stone was thrown on to the land which, for the purpose of quarrying, they had Purc^iased from the Lawrence company. *Their deed from that company contemplated, the continuance of their business, and if guilty of no negligence, the defendants would not be liable. That the intestate was himself guilty of negligence, was not so clearly established, that the judge was warranted in withdrawing the case from the jury, upon that ground. He was going to his dinner, as for years he had been accustomed to do. This long-continued habit, was presumptively with the knowledge and consent of the defendants. The court could not say, that in using the foot-path, he needlessly selected a route of danger, which per se amounted to negligence. Only when blasts were discharged, was there any danger at all. If it was doubtful, whether going home at the hour when it was usual for mén to leave work for dinner, and going by his accustomed route, when the bell announced to the men the proper time, ^?as negligent, in view of the fact, that at or about that time, the defendants were in the habit of setting off blasts, then it was proper to submit the question to the jury. Carolus v. City of New York (6 Bosw. 15) bears no clear analogy to this case. There, the defendants, being lawfully engaged in repairing a public avenue, the repair of which necessarily obstructed passing, and having provided a convenient passage around the obstruction, were not liable to an injury resulting from the plaintiff’s rejecting such passage, and recklessly attempting to travel along a bank or elevation, not intended to be used as a path, dangerous to be so used, and which the defendants neither intended nor knew to be so used. If there be doubt whether the plaintiff should have been nonsuited, it arises on the question, whether the defendants were proved guilty of any negligence. The evidence warranted their insisting with much force that they were prosecuting their business in a lawful and ' proper manner, on their own land. They were discharging these blasts, at the hour in the day which had long been customary. The blast which caused the injury was forty feet below the surface, *and the forcing of stones to a considerable distance out of the excavation, was not to be ordinarily expected. Blasts of that description, called sand blasts, are intended to open the crack or fissure in which the powder is placed, and divide the rock or stone, throwing it down, and ordinarily does nothing more. It is only when some unknown defect exists, that there is an explosion causing any considerable danger. They, therefore, had no reason to anticipate any such effect as resulted on the occasion in question. No danger was anticipated by the men employed in the work, except in its immediate vicinity; to those in the vicinity., actual notice was given. But, on the other hand, the claim is also urged, that such blasts do sometimes produce more violent effects, and in the use of powder for such purposes, such occurrences, though from unseen defects, will be guarded against by men of ordinary prudence. That it is but a slight measure of precaution against injury, to give notice in season to persons who may reasonably be expected to be within range of such explosion. The hour selected was not while the men were at dinner, hut at the very moment when (the bell having just before been struck to notify them of the dinner-hour), it was to be expected the intestate would be passing. It was at least due to whoever was lawfully within reach, to look and see if persons were near, and if so, to warn them. That, in truth, notice was not given in season to enable the intestate to reach a point of safety, even upon the evidence most favorable to the defendants. Whatever doubt I might entertain on the whole proofs, I am clear, that under the circumstances, it was proper to submit these questions of fact to the jury, and, therefore, that the motion for a nonsuit was properly denied. The judgment should be affirmed. Judgment affirmed.