Per Curiam.
We think that we have no power to compel the
plaintiff to submit to an examination.
Lore, C. J.,
(charging the jury).
This is an action on the case, brought by Benjamin Mills, the plaintiff, against the Wilmington City Railway Company, the defendant, to recover damages for injuries to his right leg.
On the twenty-third or twenty-fourth day of September, 1892, the defendant company was engaged in blasting rocks in the bed of the Wilmington and Philadelphia turnpike road, a highway of this county, at or near Shellpot Creek. The plaintiff was on the. highway, and was struck on the right leg by a piece of the rock which from blasting was hurled against his right leg near the knee, causing the injuries of which he complains.
The plaintiff claims that he was injured by the negligence of the defendant; that the blasting was dangerous in itself and was done in a most frequented public highway; that no proper warning was given of the blast or care taken to prevent accident.
The defendant claims that it was lawfully engaged in blasting rock for the purpose of improving the road under the authority of its charter, and with the consent of the turnpike company j that it exercised all reasonable and proper care; that the accident was caused by the contributory negligence of the plaintiff.
It is for you to decide whether the plaintiff is liable in damages under the law as we shall now announce it in pursuance of the prayers presented in this case.
We have been asked by the defendant to charge you that the plaintiff cannot recover, because in his declaration he has described the road where the accident happened as a public road, while his proof is that it is a turnpike road or highway. We do not think that this is a fatal variance and cannot charge you as requested.
In determining this case you must assume that the defendant company was engaged in blasting lawfully and rightfully at the time and place named, as no proof has been offered to the contrary.
But assuming that they were there lawfully and properly the question still remains: Did the negligence of the company cause the injury complained of?
Persons lawfully on a highway have .a right to its use without molestation or hindrance, with the limitation that such use is subject to reasonable interruption for purposes of construction and repair.
Blasting rocks on or near a public highway is in itself dangerous work, and persons engaged therein must use great care in conducting it, so that persons rightfully using the highway may not be injured. The care in each case is proportioned to the danger, and must be such as an ordinarily prudent person would use in like cases. It was the duty of this company to take every reasonable and proper precaution, and to see that all travellers on that highway within the danger line were duly warned and removed from danger before firing the blast. If it failed to do so and the plaintiff was injured because of that failure, the company was guilty of negligence and the plaintiff is entitled to recover.
If, however, the plaintiff was properly warned, and disregarded the same, or was in a place of safety, and from motives of curiosity or otherwise voluntarily put himself in a position of danger, whereby the injury occurred, he was guilty of contributory negligence and cannot recover.
This question of negligence, is a fact for your determination from all the evidence in this case. It is your province to say whether negligence existed at all, and if so, on whose part, and whether such negligence was the cause of the injury. The company can only be held liable for such negligence as constituted the proximate cause of the injury.
In considering this evidence, other things being equal, positive evidence is of greater value than negative, and is more entitled to your consideration. Wherever the evidence is conflicting, you must reconcile it if you can, if you cannot, then you should give credit to those witnesses, whom you believe the best informed, most impartial, truthful and reliable in all regards. You may believe or disbelieve witnesses as your best judgment may approve.
The plaintiff’s right to recover depends upon proof of the negligence of the defendant company. The burden of proof is on the plaintiff. To entitle, him to a verdict you must be satisfied of such negligence by a preponderance of proof. Unless you are so satisfied, your verdict should be tor the defendant.
If you find for the plaintiff, you verdict should be for such a sum of money, as in your judgment, would be a reasonable compensation for the pain and suffering, loss of earnings, and perma-. nent injury sustained by him according to the proof made in the case.
Verdict for the plaintiff for §250.