majority rest content in denying recovery unless there be an immediate personal injury. Must not courts and juries depend much, if not all, upon the principles and doctrines of medicine, and the knowledge of the medical profession, as they do in other matters, notably in determining professional violations of duty,135 in determining whether the legal requirements that no recoveries shall be had but for "personal injuries," and shall recovery for what we understand by "mere fright" be denied because it is difficult to apply the doctrines of proximate and remote cause to this class of cases, and because there are uncertainties surrounding the subject? Recovery or no recovery, in such cases, all depends upon whether personal injury is done by fright. It is not difficult to trace cause and effect where a woman enceinte has a miscarriage immediately following severe fright or great shock caused by some neglect of another. And yet, we find authorities denying recovery in such cases. In a late Iowa case it is said that"it is within the common observation of all that fright may, and usually does, affect the nervous system, which is a distinctive part of the physical system, and controls the health to a very great extent, and that a sound body is never found with a diseased nervous organization. . . The nerves being, as a matter of fact, a part of the physical system, if they are affected by fright to such an extent as to cause physical pain, it seems to the court that the injury resulting therefrom is the direct result of the act producing the fright."137 A number

136

of cases incidentally have touched upon this question. 138

135 See sec. 371, post.

136 Ante, note 133.

137 Watson v. Dilts (Iowa), 89 N. W. 1068.

138 Purcell v. St. Paul etc. R. R. Co., 48 Minn. 134, 50 N. W. 1034; Hill v. Kimball, 76 Tex. 210, 13 S. W. 59; Buchanan v.

West Jersey R. R. Co., 52 N. J. L. 265, 19 Atl. 254. In this case the suit was not on the single ground that plaintiff was frightened, and the court did not find it necessary to decide whether mere fright caused by a wrongful act, which resulted in physical injury gives rise to a right of action. In Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 44 Pac. 320, it was said that a shock or injury to the nervous system occasioned by a tort must be regarded as a physical injury producing suffering to the body rather than to the mind, though the mind may be at the same time injuriously affected: Bell V. Railway Co., L. R. 26 Ir. 428.

CHAPTER XX.

INJURY TO RIGHT OF PERSONAL SECURITY BY NEGLIGENCE IN USE OF DANGEROUS AGEN

CIES.

§ 258. Blasting-Of the right to engage in work of.

§ 259. Blasting continued-Liability for injuries from.

§ 260. Blasting-Doctrines of contributory negligence applicable.

§ 261. Electricity-Care required in use of.

§ 262. Explosives-Negligence in use and storage of.

§ 263. Same-Gas and dangerous fluids.

§ 264. Same continued-Contributory negligence of injured. § 265. Firearms-Use of.

§ 266. Fireworks-Negligent use of.

§ 267. Same continued-Contributory negligence.

§ 258. Blasting-Of the Right to Engage in Work of. Liability for injuries to the person resulting in the work of blasting will depend upon the right of persons to engage therein. Under certain conditions and circumstances it will be inherently dangerous, while in other instances this will not be so. The work of blasting is in so many instances a work of necessity in making excavations for foundations of buildings, in digging wells, in mining, in improving roads and streets, in building railways,1 and the measure of the right and the extent of liability depends entirely upon conditions and circumstances under which it is done. Being a work of necessity, even in thickly populated places, it follows that it must be done, but in such cases it must be carried on under certain restrictions and limitations; or, rather, certain precautionary 1 1 Thompson on Negligence, sec. 765.

measures must be adopted to prevent injury. Where the work is carried on in less populous places, the right may be freely exercised so long as care and caution is observed.

§ 259. Blasting Continued-Liability for Injuries from. Whether or not the liability of persons engaged in the work of blasting for injuries resulting therefrom is what is termed an absolute liability, or whether the wrong be nuisance or negligence, is the important topic presented for solution in this section. An attempt at classification of authorities by placing the decided cases in their appropriate places is difficult when loose expressions are used, and sharp distinctions are not always drawn, although it is no part of the duty of judges to instruct lawyers. The important task of making the way clear falls more to the text-writer. In the former chapter were set forth injuries to the person by acts coming within the class of absolute liabilities, not involving want of care. The inclination was to place this subject there, but questions of negligence are found constantly discussed in the cases, and the cases rest so upon acts of negligence that it is treated here, although we feel certain that in some instances the responsibility for injuries resulting from blasting would seem to be absolute.

What is the basic principle underlying this liability? Blasting is an intrinsically dangerous work. Certain precautions may and must be adopted to avoid injuries, varying according to the surrounding circumstances. Whenever these are regarded as necessary, and they are not observed, when, if they had been, injury would have been averted, the courts pronounce this negligence. For instance, it is said that persons using a powerful explosive are charged with full

2

knowledge of its dangerous effects, and hence are bound to adopt some means to protect persons placed in danger by the explosion of such blasts, a failure being negligence, for which they are liable. To whom, may we ask, is this duty of precaution owed to the world, trespassers and all? The answer will depend upon circumstances entirely, and in many instances upon the negligence of the complaining party. This duty is owing to persons residing within two hundred yards from where a railway company is blasting upon a right of way; to persons lawfully using a highway where blasting is being done therein, or on premises adjoining thereto, it being necessary that all travelers should be warned; to a person crossing the land of another, where blasting is being carried on, under a license acquired by habitual use; or, in fact, to anyone whose safety there is reason to believe will be endangered; and to those within the limits of danger." There are quite a number of authorities upon this point bearing upon the necessity of adopting certain precautions to prevent missiles from reaching persons in the neighborhood, or giving timely warning, that all within possible danger may escape, considering failure so to do as an act of negligence.

2 Blackwell v. Lynchburg etc. R. R. Co., 111 N. C. 151, 32 Am. St. Rep. 786, 16 S. E. 12.

3 Id.

4 Milk v. Wilmington City Ry., 1 Marv. (Del.) 269, 40 Atl. 1114; Sullivan v. Dunham, 161 N. Y. 290, 76 Am. St. Rep. 274, 55 N. E. 923; Wright v. Compton, 53 Ind. 337.

5 Driscoll v. Newark Lime etc. Co., 37 N. Y. 637, 97 Am. Dec. 761.

6 Cameron v. Vandergriff, 53 Ark. 381, 13 S. W. 1092.

7 Wadsworth v. Marshall, 88 Me. 263, 34 Atl. 30.

8 St. Peter v. Dennison, 58 N. Y. 416, 17 Am. Rep. 258; Blackwell v. R. R. Co., 111 N. C. 151, 32 Am. St. Rep. 786, 16 S. E. 12; Simmons v. McConnell, 86 Va. 494, 10 S. E. 838; Mills v. Wilmington City Ry. Co., 1 Marv. (Del.) 269, 40 Atl. 1114; Driscoll v. Newark Lime etc. Co., 37 N. Y. 637, 97 Am. Dec. 761; Clarkin v.