
    Stephens, Jackson & Co. v. Martins.
    In an action for damages for personal injuries caused by the alleged negligence of the defendants in not giving warning of a sand blast ” in the operation of a section in a slate quarry, the plaintiff, who was employed, by other parties than the defendants, to split up the slate after it was taken out of the quarry, gave evidence that he was injured by being struck by a rock thrown out by a sand blast from defendants’ premises. The defendants claimed that there was a custom, amongst the operators of the different sections of the quarry, to give notice of the blast to the workmen on the landing above, who, in turn, would notify the other workmen. The evidence as to what was the customary mode of warning was conflicting, but a number of witnesses, who were near the plaintiff at the time of the accident, testified that they heard no notice of the blast. Other witnesses who were in the same neighborhood testified that they heard a warning given. The court refused to instruct the jury that the verdict must be for the defendants, under the evidence, and charged that, if the jury found that, at the time of the accident, the plaintiff did not know of the alleged custom of giving notice of the blasts, and had no notice, either actual or constructive, of the particular blast in question, then he would be entitled to a verdict. Held, on writ of error by the defendants, that the charge was as favorable as the defendants could ask, and was no cause for reversal.
    March 12, 1889.
    Error, No. 88, July T. 1888, to C. P. Northampton Oo., to review a judgment on a verdict in an action on the case for personal injuries by Francis Martins against John Stephens et al., trading as Stephens, Jackson & Co., at Dec. T. 1886, No. 39. Paxson, C. J., and Green, J., absent.
    Martins was a workman in a section of a slate quarry operated by Lobb & Co. His duty was to split up the slate after it was taken out of the quarry. He worked in a shanty some 550 feet from where the blast occurred. Another section of the same quarry, was operated by the plaintiffs in error. Only imaginary boundaries separated the different sections. The defendant in error was injured, on April 29, 1886, by being struck by a piece of slate falling from a blast which had been exploded on the premises of the plaintiffs in error.
    The other facts of the case are stated in the opinion of the supreme court and in the following charge of the court below by Schuyler, P. J.:
    “ It is undisputed that the stone, which fell with such damaging effect upon the arm of the plaintiff, was hurled from the quarry of the defendants by a blast fired under the direction of the defendants. It is not pretended that there was any negligence in the act of firing the blast, but the plaintiff claims that he was entitled to notice that the blast was about to be fired, so that he could escape to a place of safety, and that no such notice was given to him.
    
      “ The general rule is that persons engaged in blasting must give personal notice, to every one within the limits of possible danger, at the time of firing a blast, that the blast is about to be fired, and that the omission of such notice is, in itself, evidence of negligence. But this rule is not unyielding. For example, we can conceive of a quarry being conducted, for some sufficient reason, upon the plan that the employees in the quarry should look out for blasts for themselves without any notice whatever. If a person should contract to work in such a quarry, with the knowledge that it was being worked on the plan just indicated, he could not, if injured by a .blast, set up want of notice of it as a basis for the recovery of damages for the injury he received.
    “Again, if, as here, there are three quarries side by side in one and the same hole, or with no visible lines between them, and which are worked by different proprietors, and there is an agreement or understanding, or a custom between these proprietors that notice of the firing of blasts should be given in a certain way, although in all instances this notice might not amount to actual personal notice, a person entering the service of either of these proprietors and receiving an injury from a blast fired by either could not recover damages for such injury, if, at the time such injury was received, he had knowledge of the arrangement or custom, and if, in point of fact, notice of the blast was given in accordance with such arrangement or custom in time to enable him to escape to a place of safety.
    “The defendants do not deny that they were in duty bound to give the plaintiff notice of their intention to fire the blast which did the plaintiff such serious injury. As I have already indicated, this notice might be either actual or constructive notice, according to the circumstances. You will first inquire whether actual personal notice was given to the plaintiff of the intended blast in time to enable him to escape to a place of shelter. William Jones testifies that “as he was passing plaintiff’s shanty, ... he notified him of the blast, and that the plaintiff was close enough to him to hear what he said.” At the time this notice is claimed to have been given, the plaintiff was on the outside of the shanty. John Parsons, who was in the plaintiff’s shanty at the time, and farther away from Jones than was the plaintiff, says that he heard a notice given of the blast. On the other hand, the plaintiff and Nicholas Male, the latter person being close to the plaintiff at.the time, both testify that they heard no notice of the blast. A large number of other witnesses in that neighborhood swear that they heard no notice. You will scrutinize the testimony of those witnesses with care and say whether or not the notice was given as claimed by the plaintiff. If you find that actual personal notice was given in time for the plaintiff to escape to a place of shelter your verdict must be for the defendants.
    “If, however, you find that actual personal notice was not given, your next inquiry will be whether constructive notice was given.
    “ The contention of the defendants is that there was an understanding, or custom, between them and the proprietors of the two other quarries, that, when blasts like the one in controversy were' to be put off, notice should be given, by the persons having charge of the blasts, to the “landers” that the blast was about to be fired, and that then the “landers” of each quarry should give notice to the other employees of such quarry of the intended blast; that the plaintiff, at the time of the accident, knew of this understanding or custom ; that, when the blast in controversy was fired, notice was given by the defendants, by the landers, some fifteen or twenty minutes in advance of the explosion; that the landers of Lobb & Co., in whose employ the plaintiff was then, communicated the notice in the accustomed way to the other employees, and that it makes no difference whether the plaintiff actually received the notice or not. I have already intimated that the law is in that way, and I now say to you that if you find the facts to be as they have just been assumed to be, then, again, your verdict must be for the defendants.
    [“ If, however, you find that, at the ’ time of the accident, the plaintiff did not know of the alleged custom of giving notice of the blasts, and that he had no notice, either actual or constructive, of the particular blast in question, then he will be entitled to your verdict for such damages as will compensate him for the injury he has sustained.”] [1]
    The defendant requested the court to charge as follows :
    “1. The verdict, under all the evidence, must be for the defendants. Ans. I cannot affirm this point.” [2]
    “ 2. If the jury find that at the time of the plaintiff’s employment by Lobb &' Co., his employers, he was acquainted with the dangers of his employment, from blasting in the necessary operations of the quarry, he assumed the risks of that employment and cannot recover from defendants, provided notice of this blast was givqn in the manner usual and accustomed for such blasts, during the period of his employment, even if he, the said plaintiff, did not receive actual notice. Ans. Affirmed.”
    Yerdict and judgment for plaintiff for $2,000.
    
      The assignments of error specified, 1, the portion of the charge included within brackets, quoting it; and, 2, the action of the court in refusing defendants’ 1st point, quoting it.
    
      W. S. Kirkpatrick, with him Henry W. Scott, for plaintiff in error.
    Under the admitted facts of this case, there could be no recovery for this kind of an injury had the blast been fired by one of the employees of Lobb & Co., by whom the plaintiff was employed, the plaintiff having assumed the risk of the employment. But the blast was in the same quarry; it was fired in pursuance of the general custom agreed upon and adopted by all of the proprietors among, themselves; each of the owners then could escape liability for injury to the men employed by the others by firing off each other’s blasts. The courts apply the same rule as to risk of employment in the case of independent contractors. Ohio & M. Ry. v. Hill, Indiana, 18 N. E. R. 161; Woodley v. Metropolitan Dist. Ry., 2 L. R. Ex. Div. 384; Pingree v. Leyland, 135 Mass. 398.
    Personal notice could not be given to the large number of men employed whenever a blast was to be fired. It had been the custom to give the alarms for the blasts from the men in the quarry to those on the banks, who passed the word along to those employed farthest away. The plaintiff denied having heard the alarm for this blast, but those working with him heard it. However, he knew the custom, and therefore could not recover if a warning was given in the usual manner, even if he did not hear it. The court below so held by affirming our 2d point. The logical result was to require the court to say the verdict must be for the defendant, for all of these conditions were proven by the plaintiff’s witnesses and by himself.
    
      T. F. Emmens, with him Chas. F. Walter and B. F. Fackenthall, for defendant in error.
    The existence of a custom is a question of fact for the jury. A usage, to govern, must be so certain, definite and notorious as to be understood by the parties. U. S. v. Duval, 1 Gilpin, 356. The testimony as to the custom in this case was conflicting.
    To establish a custom, the evidence must be uncontradictory. Adams v. Pittsburgh Ins. Co., 76 Pa. 411; McMasters v. Pa. P. R., 69 Pa. 374; Cope v. Dodd, 13 Pa. 33; Coxe v. Heisley, 19. Pa. 243; Randall v. Smith, 63 Me. 105; Chenerey v. Goodrich, 106 Mass. 566; Carter v. Phila. Coal Co., 77 Pa. 286.
    Even if there were some slight negligence on Martin’s part, the plaintiff in ei’ror, knowing the danger the man was in and failing to use due diligence to warn him, would be liable. Raisin v. Mitchell, 9 C. & P. 613; Sells v. Brown, 9 C. & P. 601; Bridge v. Grand Junction R. R., 3 M. & W. 244; Davies v. Mann, 10 M. & W. 546.
    Whether or not the negligence alleged contributed to the injury is a question of fact. Bigelow v. Reed, 51 Me. 325; Wilds v. Hudson R. R., 24 N. Y. 430; Hoben v. Burlington R. R., 20 Iowa, 562; Brand v. Schenectady R. R., 8 Barb. 368; Hays v. Gallagher, 72 Pa. 136; Beatty v. Gilmore, 16 Pa. 463; Waters v. Wing, 59 Pa. 211.
    A jury alone can determine if negligence has been proved. Crissey v. Hestonville Passenger R. R., 75 Pa. 86.
    The character of these blasts in the quarries varied. The amount of care to be taken is to be determined by the probability or possibility of ensuing danger. Smith’s Law of Negligence, 9.
    Though the method of quarrying might make the throwing of some part of a blast on adjacent land excusable as a trespass, it follows not that it was a matter of right. Knight v. Abert, 6 Pa. 472.
    It is the duty of persons engaged in blasting to give notice to all persons about passing within the limits of possible danger, at the time of firing the blast, and omitting to do this, if persons passing are injured by the discharge, the question of negligence in omitting to give notice, is for the jury, and their finding thereon is conclusive. Driscoll v. Newark, etc., Co., 37 N. Y., 10 Tiff. 637; St. Peter v. Denison, 58 N. Y., 13 Sick. 416.
    While it was the duty of the defendant in error not to run recklessly into danger and to use ordinary care and prudence to guard against such ordinary perils as might beset him, he was not bound to be on his guard against such as he had no reason to suspect. Thirteenth St. R. R. v. Boudrou, 92 Pa. 475; Gray v. Scott, 66 Pa. 345.
    One engaged in an act which the circumstances indicate may be dangerous to others, is liable if he does not take all the care which prudence would suggest to avoid the injury. McGrew et al. v. Stone, 53 Pa. 436.
    Plaintiff in error was responsible for extreme care; defendant in error only for common prudence, which would guard against manifest peril. Pittsburgh v. Grier, 22 Pa. 55.
    March 25, 1889.
   Sterrett, J.,

The two subjects of complaint in this case are: 1st. In charging the jury, inter alia, as follows: “ If, however, you find that, at the time of the accident, the plaintiff did not know of the alleged custom of giving notice of the blasts, and that he had no notice, either actual or constructive, of the particular blast in question, then he will be entitled to your verdict for such damages as will compensate him for the injury he has sustained.” 2d. In refusing to charge, as requested, that “the verdict, under all the evidence, must be for the defendants.”

It appears from the testimony that, in operating the slate quarries, blasts of different kinds and degrees of intensity, and consequent danger, are required. Those in general use are known to slate-men as “scallop blasts,” attended with little or no danger, except to those in the immediate vicinity of the explosion. The only warning usually given is by calling “ fire,” so as to attract the attention of employees and others at the- bottom of the quarry. Sometimes it is necessary to fire what is known as a “ back hole ” blast, in doing which stones, etc., are liable to fly up and out of the quarry and land on the bank, “ because [as the witnesses say] there is more ramming ” in the preparation of such blasts. It is, therefore, necessary that notice of- a more emphatic and effective character be given, so as to attract the attention of the “ landers,” and, through them, those who - may be near and within the sphere of danger. There is also another kind of blast, rarely used, known as the “crack” or “sand blast.” This is prepared by partially filling an opening or crevice in the rock with powder, laying a fuse and filling •in with sand and slate rubbish. If a heavy charge of powder is used, such a blast will send pieces of rock and stone to a great height and distance. Plaintiff below testified that, before firing such a blast, notice was always given by sending a man around. He says: “ They sent a man around and gave warning.” Another witness, in answer to a question put by the court, said: “ They would give an alarm, some way or other, so they would be satisfied every person had warning.” Peter Eobinson, another witness, testified he did “ not know if it is customary to give warning to the men on the bank -of such unusual blast or not. . . . The men on the landing, as a rule, when they see it is a ‘back hole,’ or a blast likely to fly, generally hallo £ back hole,’ and they get notice on the bank of tener from the men on the landing than any other way.” John Cony testified: “It is customary to call up to the £ landers,’ and they would pass the word along the bank.” Others testified substantially to the same effect, but there was evidently a conflict of testimony as to what was the customai’y mode of warning when unusually dangerous blasts were fired. The weight of the testimony, however, appears to be that it was such special warning as would bring home notice of the danger to all within its sphere. Any other custom than that would be unreasonable; and would be more honored in the breach than the observance.

The evidence also tended to show that the blast by which plaintiff below was injured was a “ crack ” or “ sand blast,” prepared by putting about thirty-five pounds of powder in a large crack or opening in a rock, weighing 60 to 75 tons, lying near the bottom of plaintiff in error’s quarry. Sand and loose slate rubbish were rammed in on top; and, in that condition, it was fired, as the jury might well find, and doubtless did find, without proper warning to those who were exposed to the danger. The result of the blast appears to have been a disappointment to plaintiffs in error themselves ; but, there appears to be no good reason why it should have been. One of them, Mr. Jackson, testified: “We expected it would throw the burden south, but it didn’t; it blew out this six inches of seam and carried it right over the bank, which is not natural for it to do. . . . The stones flew out like ball out of a cannon; some fell on the tracks, near the Bangor and Portland depot, fifteen hundred feet away, and no other blasting ever threw stones as near the depot as that.” According to the evidence, the blast was one of the most dangerous kind. Considering the weight of the charge, 35 lbs. of powder, and the manner in which it was prepared, the result was not surprising.

' It was clearly the duty of defendants below to give proper and timely warning, not only to their own-employees, but also to the plaintiff and all others at work within the sphere of the danger. Anything short of that would be a plain violation of the principle Bio utere tuo ut alienvm non, laedas. Whether such warning was given or not, was, under all the evidence, a question of fact for the jury; and it was submitted to them under instructions that were certainly not unduly prejudicial to defendants below. It must be borne in mind that what was said by the learned judge, as to the alleged custom of giving notice of firing blasts, and whether plaintiff below had either actual or constructive notice or not, had reference to the dangerous class of blasts, or to the particular blast by which he was injured, rather than to the comparatively harmless class, known as “ scallop blasts.”

The entire charge, including the excerpt recited in the first specification of error, was quite as favorable to defendants below as they had any just reason to expect.

It follows that neither of the assignments of error is sustained.

Judgment affirmed.  