Houghton v. Loma Prieta Lumber Co.

McFARLAND, J.

This action was brought by plaintiff against defendant to recover damages for personal injuries alleged to have been sustained by her through negligence of defendant in exploding a blast. The verdict and judgment were for plaintiff, and from the judgment and from an order denying its motion for a new trial defendant appeals.

Plaintiff, at the time she received the injuries complained of, was walking with her husband, Herbert E. Houghton, since deceased, along the course of an unfinished wagon-road which was being constructed, and when they had reached a certain point a blast nearby, which was intended to remove a stump on the course of the road, was exploded, and from the consequences of the explosion the plaintiff sustained personal injuries for which this action is brought. At the same time, from the same explosion, her husband received injuries which caused his death. An action was brought by this present plaintiff, and certain minor heirs of said Herbert E. Houghton, to recover damages for his death. In that action there was' a verdict

[576]

and judgment for the plaintiffs therein, but on appeal by defendant from the judgment and from an order denying a new trial, the judgment and order appealed from were by this court reversed. The decision reversing the judgment and order was filed December 6, 1907, and is published

ante,

p. 500, [93 Pac. 82]. There were two transcripts on that appeal, one numbered S. F. No. 3920, which presented the appeal from the judgment, and the other S. F. No. 3837, which presented the appeal from the order denying the motion for a new trial. For brevity we will refer only to S. F. No. 3920. The evidence in that case was substantially the same as that in the case at bar. It was contended there, as in the present case, among other things, that the work of constructing the road was being done by A. W. "Wyman as an independent contractor with appellant; and the case was reversed because the court erroneously gave certain instructions to the jury to the effect that, although Wyman was an independent contractor, still the jury might find a verdict against appellant upon the theory that the work of building the road was so intrinsically and necessarily dangerous as to be

per se

a nuisance, and that therefore the rule of