injuring A. Held, contributory negligence: Ochsenbein v. Shapley, 85 N. Y. 214.

§ 1147. Blasting Rocks.- Persons blasting rocks and not taking proper precautions to prevent injury to others are liable therefor. Negligence may arise from the blast not being properly set, covered, or fired, or from the failure to warn passers-by. The fact of the injury has been held to raise a presumption of negligence, i. e., that the blast was not properly covered or fired. So also has the fact that the precautions required by a city ordinance had not been taken.5 Where the resulting injury is to the freehold or possession of another, the question of negligence does not arise. A man has a right to immunity from such invasions of his right of property or possession, irrespective of the question whether the person making such invasion was in the exercise of ordinary care or not." Where a house is injured from blasting, the action may be brought either by the owner or the tenant, - the former for the injury to his property, the latter for the injury to his possession. But the owner is not liable for the act of an independent contractor. In some states it is held that injuries to adjacent houses, and other real property, caused by a railway company in blasting rocks in the necessary work of constructing its road, authorized by its

11 Thompson on Negligence, 113. In an action for an injury sustained by a passer on a highway on the lands of the A mining company by being struck by a stone from a blast fired by the B mining company, evidence of an agreement between the companies that each may throw rocks on the other's adjacent premises in blasting is incompetent: Beauchamp v. Mining Co., 50 Mich. 163; 45 Am. Rep. 30.

2 Ulrich v. McCabe, 1 Hilt. 251. Defendant cannot answer that the profits of the business do not warrant the expense of such precautions. The question of necessity therefor is for the jury: Beauchamp v. Mining Co., 50 Mich. 163; 45 Am. Rep. 30.

6 Hay v. Cohoes Co., 2 N. Y. 159; 3 Barb. 42; 51 Am. Dec. 279; Tremain v. Cohoes Co., 2 N. Y. 163; 51 Am. Dec. 284; Scott v. Bay, 3 Mo. 431; Gourdier v. Cormack, 2 E. D. Smith, 200.

7 Gourdier v. Cormack, 2 E. D. Smith, 200; Hardrop v. Gallagher, 2 E. D. Smith, 523.

8 Pack v. New York, 8 N. Y. 222; McCafferty v. R. R. Co., 61 N.Y. 178; 19 Am. Rep. 267.

charter, are not wrongful acts for which an action will lie; but the damages thereby occasioned are to be assessed by commissioners, under the statute providing for the assessment of damages caused by the taking and damaging of property in the making and maintaining of such roads.* But this does not include those damages which are not necessarily incident to the doing of the act thus authorized and made lawful. Thus if such a company, in so blasting rocks, scatters loose stones upon the land of an adjacent proprietor, it will be liable. That the defendant superintended the blasting, and gave orders concerning it, is sufficient, prima facie, to sustain a judgment for damages against him, without proof respecting the contract or capacity in which he acted. A written notice given by the owner of an adjacent lot to the plaintiff of an intention to blast rock thereon is prima facie evidence to charge the sender of such notice with liability for an injury to the plaintiff's possession subsequently caused by rocks being blasted thereon, so as to cast upon him the burden of showing that the mischief was the work of others for whom he was not responsible.*

ILLUSTRATIONS.- Defendant entered into a contract with the state of New York to enlarge a public canal. In carrying out the contract he used gunpowder in blasting rock and hard earth, and missiles were hurled against plaintiff, who was at work on premises near the canal, injuring him. Held, 1. That defendant had no such delegation of sovereign power from the state as to allow him to produce direct injuries to third parties, although the blasting might have been a necessary act; 2. That, whether defendant was negligent or not, he was liable for the injury to plaintiff; 3. That defendant was bound either to adopt such precautions as would prevent such missiles from reaching the place where plaintiff was, or to give him personal and timely notice of the blast; 4. That defendant could not be regarded as the agent of the state, he being a mere contractor

1 Dodge v. County Comm'rs, 3 Met. 380; Whitehouse v. R. R. Co., 52 Me. 208; Sabin v. R. R. Co., 25 Vt. 363. 2 Whitehouse v. R. R. Co., 52 Me.

208.

3

Hardrop v. Gallagher, 2 E. D. Smith, 523.

Gourdier v. Cormack, 2 E. D. Smith, 200.

to do the work in a lawful manner: St. Peter v. Denison, 58 N. Y. 416; 17 Am. Rep. 258.

§ 1148.

Contagious Diseases-Unwholesome Food.A landlord who lets premises knowing that they are infested with a contagious disease, or in a condition likely to cause a disease, without notifying the lessee, is liable to the latter, in case the disease is communicated to him, for the damages thereby sustained. In a New York case a physician attended a woman who died of small-pox, and subsequently employed the plaintiff to whitewash the house in which the death occurred. The plaintiff, who knew the woman had died of the small-pox, entered and whitewashed the house, relying upon the assurances of the defendant that the house had been thorougly disinfected, and that he would be entirely safe in so doing; but plaintiff having contracted the disease in the house, he subsequently brought an action to recover the damages sustained thereby. The court held that the relation between the parties was that of master and servant; and that the plaintiff was entitled to recover in case the jury should find, on all the facts, that the plaintiff did not act rashly and inexcusably in entering the house under the employment, and that the defendant had not warned him of the danger. While the authorities of a city may remove from the city persons infected with small-pox, yet they are liable for negligence in doing so, and for removing them in stormy weather and putting them in an unsafe and unprotected tent, whereby they are so exposed that death ensues. One who holds himself out to the public as a caterer is liable to the parties who partake what he has provided for them, in case such parties

3

1 Cesar v. Karutz, 60 N. Y. 229; 19 Am. Rep. 164; Cutter v. Hamlen, 147 Mass. 471. A county is not liable to the inmates of its jail for permitting it to remain in a condition which causes them to become sick and dis

eased: Pfefferle v. Lyon Co., 39 Kan. 432.

2 Span v. Ely, 8 Hun, 256.

3 Aaron v. Broiles, 64 Tex. 316; 53 Am. Rep. 764.

thereby suffer from eating unwholesome food, as, for instance, one who buys a ticket for a supper at a public ball.'

ILLUSTRATIONS.

Defendant took his children when they had whooping-cough, a contagious disease, to the boardinghouse of plaintiff to board. Her child, and the children of the other boarders, contracted the disease, whereby she was put to expense, care, and labor in consequence of her child's sickness, and sustained pecuniary loss by reason of boarders being kept away. Held, that defendant was liable for damages: Smith v. Baker, 19 Cent. L. J. 173.

Bishop v. Weber, 139 Mass. 411; 52 Am. Rep. 715, Allen, J., saying: "If one who holds himself out to the public as a caterer, skilled in providing and preparing food for entertainments, is employed as such by those

who arrange for an entertainment to furnish food and drink for all who may attend it, and if he undertakes to perform the services accordingly, he stands in such a relation of duty towards a person who lawfully attends the entertainment and partakes of the food furnished by him as to be liable to an action of tort for negligence in furnishing unwholesome food whereby such person is injured. The liability does not rest so much upon an implied contract as upon a violation or neglected duty voluntarily assumed. In

deed, where the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter have the right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of contract between the parties: Norton v. Sewall, 106 Mass. 144; 8 Am. Rep. 298; Longmeid v. Holliday, 6 Ex. 761; Pipin v. Shepard, 11 Price, 400.”

CHAPTER LIX.

INJURIES ON REAL PROPERTY.

§ 1149.

§ 1150.

Owners of premises - No duty towards trespassers or sight-seers.
Spring-guns, and defense of property.

§ 1154.

Injuries to third persons from defective condition of leased property

§ 1164. Permissible obstruction in streets-Building materials.

§ 1149. Owners of Premises-No Duty towards Trespassers or Mere Sight-seers. The owner of private grounds or buildings is not obliged to keep them safe, so that no injury shall result to trespassers or those who go where they are not invited, but merely from curiosity or motives of private convenience in no way connected with either business, social, or other relations with the occupant. A land-owner who maintains upon his premises a machine not intrinsically dangerous is not liable in damages to one who, without invitation, comes upon the land hoping to obtain employment, and while there is injured through the breaking of the machine

1 Hargreaves v. Deacon, 25 Mich. 1; Kohn v. Lovett, 44 Ga. 251; Gautret v. Egerton, L. R. 2 Com. P. 371; Hounsell v. Smith, 7 Com. B., N. S., 731; Bolch v. Smith, 7 Hurl. & N. 736; Zoebisch v. Tarbell, 10 Allen, 385; 87 Am. Dec. 660; Frost v. R. R. Co., 10 Allen, 387; 87 Am. Dec. 668; Parker v.

Portland Pub. Co.,69 Me. 173; 31 Am. Rep. 262; Evansville etc. R. R. Co. v. Griffin, 100 Ind. 221; 50 Am. Rep. 783; Larmore v. Iron Co., 101 N. Y. 391; 54 Am. Rep. 718; Galveston Oil Co. v. Morton, 70 Tex. 400; 8 Am. St. Rep. 611.