Hunter v. Farren

Á person can recover for temporary interruption of his business and loss of time of his workmen, occasioned by the blasting of rock by a contractor on a public work, in the immediate vicinity of the plaintiff’s buildings, in such a negligent manner as to throw pieces of rock against the buildings and cause the plaintiff’s workmen to leave them under a reasonable .apprehension of danger; and a payment of the damage to the buildings is ho bar to the action, it being understood by the parties that the damage by interruption of the plaintiff’s business was not included in the settlement. In an action for interruption of the plaintiff’s business and loss of time of his workmen, occasioned by the negligent acts of the defendant, the measure of damages is the value to the plaintiff of the work which the defendant’s negligence prevented from being done; but, under a declaration alleging merely interruption of the plaintiff’s use and occupation of his buildings, he cannot recover compensation for loss of time of men employed in and about-his works but not in the buildings.

Tort. The declaration alleged that the plaintiffs were the owners and occupiers of certain buildings used as a machine-shop'; that they carried on the business of machinists therein, and employed a large number of workmen in said business; that the defendant, with knowledge of that fact, on divers days between May 1 and November 1, 1875, carelessly, negligently and unlawfully blasted rocks in the vicinity of said buildings, and by such blastings caused large stones and rocks to be thrown in, upon and against said buildings, “ breaking and causing great damage thereto, and preventing the plaintiffs from occupying or using the same, or pursuing their lawful business therein, and breaking up and ruining the plaintiffs’ business therein.” Answer : 1. A general denial. 2. That the injuries complained of were caused by the defendant while excavating rock, in a proper and lawful manner, under a contract with a railroad corporation, and in execution of that contract, and that he was not liable therefor. 3. Payment to the plaintiffs for all damages to their buildings. At the trial in the Superior Court, before Allen, J., the plaintiffs introduced evidence tending to show that the defendant, while executing a contract made with the Boston, Hoosac Tunnel & Western Railroad Company, blasted rocks within the located limits of the Troy & Greenfield Railroad; that while so blasting, pieces of the rock were frequently thrown upon the plaintiffs’ premises lying adjacent to the railroad and near to the ledge which the defendant was excavating, and their premises were injured to the amount of several hundred dollars by the stones so thrown; that, upon the happening of any such injury, the defendant promptly adjusted and paid the plaintiffs for all damage to their real estate; that the plaintiffs demanded of the defendant payment for damages occasioned by the interruption of their business and the loss of time of workmen in their employ, but the defendant declined to pay this claim; and that the damage to the buildings was paid for with the understanding that plaintiffs waived no rights to recover for such interruption to their business. The plaintiffs then offered evidence tending to show that the workmen employed by them in and about their premises, being reasonably apprehensive of danger from flying stones, voluntarily vacated the premises at the time of each blast, notice of which was given by the blowing of-a horn by some one in the defendant’s employ, to notify travellers upon a highway immediately adjacent to the ledge. This evidence was objected to by the defendant, on the ground that a claim for compensation for loss of time of workmen was too remote to be recovered; and that, under the pleadings, consequential damages alone could not be recovered. The judge admitted the evidence; and the defendant excepted. There was a conflict of evidence upon the question whether the defendant, in excavating the rock, used due care. The plaintiffs testified that the amount of time lost by all their workmen by reason of the defendant’s acts was 2158J hours, the value of which to the plaintiffs was $863.30, being the sum which they would have charged customers for such labor; and that the above number of hours included lost time of workmen employed in and about their works, and loss of time of workmen not employed in the machine-shop. The defendant asked the judge to instruct the jury as follows: “ 1. Great latitude of discretion is to be allowed to those who are entrusted with the construction and maintenance of great public works, in the location and mode of construction which they may adopt to effect the objects and purposes to be accomplished. 2. The plaintiffs cannot recover damages for trespass on the realty, and, failing to recover such damages, they cannot recover for loss of time of workmen. 3. The defendant, having settled the damages to the real estate, is in the same position in this case as though he had not caused any stones to be thrown upon the plaintiffs’ premises; and the voluntary leaving by the plaintiffs’ workmen of the plaintiffs’ premises was an act of pru dence on their part, and the plaintiffs cannot recover compensa tian for loss of time while thus absent. 4. The plaintiffs can recover only the amount actually paid to their workmen, and can only recover for loss of time of the workmen employed in the machine-shop.” The judge declined to give these instructions; “ and instructed the jury in substance, that if the parties settled for damages to the real estate only, and understood that the plaintiffs’ claim for injury to their business was not included, the plaintiffs might recover in this action damages for occasional and temporary interruptions to their business in the machine-shop, occasioned by the want of due care on the part of the defendant; and that the measure of damages would not be the amount which the plaintiffs paid as wages to their workmen, for the time while they were prevented from working, but the value to the plaintiffs of the work which the defendant’s negligence prevented being done.” The jury returned a verdict for the plaintiffs for $1069.77; and the defendant alleged exceptions.