Flynn v. Butler
| Citation | 75 N.E. 730,189 Mass. 377 |
| Parties | FLYNN v. BUTLER et al. |
| Decision Date | 24 October 1905 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis P. Rivet and Albt. S. Howard, for plaintiff.
Geo. L Mayberry, Frank L. Washburn, and Burke & Corbett, for defendants.
This is an action of tort for personal injuries caused by the explosion of gunpowder and other explosives under the same general conditions which appear in the case of Oughlihan Adm'r, v. Butler et al., 75 N.E. 726.
By an amendment the third count of the declaration was abandoned and the trial proceeded upon the remaining counts. The first of these alleged that the defendants' gunpowder was stored in violation of Rev. Laws, c. 102, § 93, while by the second the plaintiff sought to hold them liable for the maintenance of a nuisance. The land upon which the powder house stood was situated in the town of Tewkesbury, which maintained no fire department. Neither had it adopted any by-laws relating the manner in which this or other explosives should be stored or kept for sale. No notice ever had been given to the fire wardens of the town, as required by the statute, of the amount of gunpowder which the defendants proposed to keep, with a description of the building in which it was to be stored, though they had used the premises for this purpose from 1893 to the date of the explosion. But if, without giving such notice, its storage was made a penal offense, no civil remedy to recover damages is given by this section to those injured by its explosion. Such a remedy is provided by section 103, where the injury follows from the keeping of explosives or their transportation in violation of the general provisions of this chapter. Gunpowder, however, being expressly excepted by section 105, the plaintiff, upon the evidence, is left without any statutory cause of action, and is obliged to rely upon the second count. Rev. Laws, c. 102, §§ 93, 103, 105.
In Com. v. Kidder, 107 Mass. 188, 192, it was said: 'A nuisance at common law may consist in the keeping or manufacture of gunpowder, naptha, or other explosive or inflammable substances in such quantities and places or in such manner as to be dangerous to the persons and property of the inhabitants of the neighborhood.' In a community sparsely settled, a magazine of the capacity of that belonging to the defendants, when filled with the quantity of gunpowder shown by the evidence, may not imperil life or property in the vicinity by reason of a possible explosion; but, if located in a more populous neighborhood, it might be found to endanger both. In such an inquiry, the proximity of dwellings or of highways, or of the usual facilities for public travel, or the density of population, may be shown; and the exclusion of the evidence offered by the plaintiff for this purpose was erroneous.
Under suitable instructions, the jury could have found that by reason of its location the magazine, as ordinarily used, or after its use had become extremely hazardous by reason of the presence of nitroglycerine, with which a portion of the floor had become saturated, was within that class of dangerous objects that, according to common experience, are likely to cause damage, or are considered so intrinsically harmful as to expose the persons or property of others to the chance of instantaneous injury or destruction. Cooley on Torts (2d Ed.) 722. See Pollock on Torts (7th Ed.) 400, 404, 489, 490. If this condition was established, then the maintenance of a building so used became a constant menace to the safety of the immediate community, and hence constituted a nuisance. Com. v. Kidder, ubi supra; People v. Sands, 1 Johns. 78, 3 Am. Dec. 296; Cheatham v. Shearon, 1 Swan (Tenn.) 213, 55 Am. Dec. 734; Regina v. Lister, Deardsley & Bell, 209; Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744; Wilson v. Phoenix Powder Co., 40 W.Va. 413, 21 S.E. 1035, 52 Am. St. Rep. 890; McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508; Laflin Powder Co. v. Tearney, 131 Ill. 322, 23 N.E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34; Bradford Co. v. St. Mary's Woolen Mfg. Co., 60 Ohio St. 560, 54 N.E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740; Heeg v. Licht, 80 N.Y. 579, 36 Am. Rep. 654; Emory v. Hazard Powder Co., 22 S.C. 476, 53 Am. Rep. 730; Comminge v. Stevenson, 76 Tex. 642, 13 S.W. 556; Rudder v. Koopman, 116 Ala. 332, 22 So. 601, 37 L. R. A. 489; Wier's Appeal, 74 Pa. 230. Compare Dilworth's Appeal, 91 Pa. 247; Kinney v. Koopman, 116 Ala. 310, 22 So. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119; Dumesnil v. Dupont, 18 B. Mon. 800, 68 Am. Dec. 750; Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146; Kleebauer v. Western Fuse & Explosive Co., 138 Cal. 497, 71 P. 617, 60 L. R. A. 377, 94 Am. St. Rep. 62. Where the general public only are annoyed, the remedy would be by indictment (Commonwealth v. Rumford Chemical Works, 16 Gray, 231; Com. v. Parks, 155 Mass. 531, 533, 30 N.E. 174; Com. v. Packard, 185 Mass. 64, 69 N.E. 1067); but when direct injury to an individual results, a private action can be sustained for damages suffered, to be followed in the discretion of the court by judgment for an abatement (Codman v. Evans, 7 Allen, 431; Wesson v. Washburn Iron Co., 13 Allen, 95, 90 Am. Dec. 181; Quinn v. Lowell Electric Light Corporation, 140 Mass. 106, 3 N.E. 200; Rev. Laws, c. 186). A bill in equity also may be maintained for an injunction to restrain its further continuance. Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519.
In this continued use of their land at the risk of inflicting injurious consequences upon others, the defendants were under a legal obligation to take every possible precaution absolutely to prevent injury therefrom to those living in the neighborhood. Gray v. Boston Gas Light Co., 114 Mass. 149, 19 Am. Rep. 324; Ainsworth v. Lakin, 180 Mass. 397, 62 N.E. 746, 57 L. R. A. 132, 91 Am. St. Rep. 314. See Davis v. Rich, 180 Mass. 235, 237, 62 N.E. 375, and Rockport v. Rockport Granite Co., 177 Mass. 246, 255, 58 N.E. 1017, 51 L. R. A. 779. The only exceptions are a possible explosion precipitated by a great and unanticipated natural force, or the wrongful acts of persons over whom they had no control; and that reasonably could not be anticipated. Salisbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354; Gorham v. Gross, 125 Mass. 232, 238, 28 Am. Rep. 224. The defendants endeavor to avoid this liability, because there was evidence from which it might have been found that the explosion would not have occurred if the American Powder Mills, which was making the repairs, and over whose magazine they had no supervision, had not been negligent. No contract was entered into by which the mills engaged independently to repair the floor of the defendants' magazine. If there had been such a contract, they would not have been exonerated. Hilliard v. Richardson, 3 Gray, 349, 366, 63 Am. Dec. 743. At most the arrangement amounted to a revocable license to go upon the premises and handle their gunpowder for the purpose of removing from each compartment a source of danger common to both, but permitted to exist by the mills, that, as between themselves, alone was responsible. The boxes of powder, although on the wagons, still remained the property of the defendants, and subject to their control. Even if done by order of a servant of the mills, the jury might find that the temporary shifting of this explosive from one part of the lot to another, which, as tenants in common, the defendants or their licensee could rightfully use for this purpose, did not render its keeping less noxious. Nor was there in any sense an abandonment by them of the premises as a permanent place for its unlawful storage. Besides, they were fully informed of the cause that had made necessary the removal of a portion of the floor of the several compartments, as this work had been undertaken at their urgent request. They knew of the dangerous character of the work required, and also that during these repairs their own gunpowder would have to be removed to a place of safety. This contemplated use of their premises manifestly would be attended with great danger, by reason of the highly combustible quality of the nitroglycerine. In the natural course of things, if suitable precaution was not taken, this substance, upon friction, was likely to ignite, and the heat thus generated probably would set fire to the several explosives. It was equally plain that, if their gunpowder exploded in bulk, injury to their neighbors might follow. With this understanding of the attendant risks, they were not relieved from responsibility simply because they permitted the tenant of the adjoining compartment, for their mutual benefit, to repair the magazine, and for this purpose to remove temporarily its contents. Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61; Lane v. Atlantic Works, 111 Mass. 136; Derry v. Flitner, 118 Mass. 134; McCauley v. Norcross, 155 Mass. 584, 586, 30 N.E. 464; Wetherbee v. Partridge, 175 Mass. 185, 55 N.E....
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