Laflin-Rand Powder Co. v. Tearney

• Decision Date: 21 January 1890
• Citation: 131 Ill. 322,23 N.E. 389
• Parties: LAFLIN-RAND POWDER CO. v. TEARNEY.
• Court: Illinois Supreme Court

131 Ill. 322

23 N.E. 389

LAFLIN-RAND POWDER CO.

v.TEARNEY.¹

Supreme Court of Illinois.

Jan. 21, 1890.

On rehearing. For former opinion, see 21 N. E. Rep. 516.Mills & Ingham

and E. F. Runyan, for appellant.

Barnum, Evans & Barnum, for appellee.

MAGRUDER, J.

This is an action on the case, brought in the superior court of Cook county by the appellee against the appellant company, to recover damages to the dwelling, barn, and other outhouses upon the premises of appellee, resulting from the explosion of a powder magazine upon the premises of appellant. The buildings of the plaintiff and the powder magazine in question were located upon a street called ‘Archer Avenue,’ in the town of Lake, in the outskirts of the city of Chicago, in Cook county. Verdict and judgment in the trial court were in favor of the plaintiff, and such judgment, having been affirmed by the appellate court, is brought here from the latter court by appeal.

The first instruction given for the plaintiff is as follows: ‘If the jury find from the evidence that the plaintiff has made out her case as laid in her declaration, then the jury must find for the plaintiff.’ Defendant took exception to the giving of this instruction. We have held that such an instruction does not make the jury the judges of the effect of the averments of the declaration, but merely empowers them to determine whether the proof introduced sustains the issues made by the pleadings in the case. Railway Co. v. Porter, 92 Ill. 437;Pennsylvania Co. v. Marshall, 119 Ill. 399, 10 N. E. Rep. 220. The declaration was not demurred to. After the plaintiff had closed her testimony, the defendant moved that the jury be directed to return a verdict in favor of the defendant, which motion was overruled, and exception was taken. After the motion for new trial was overruled, defendant also moved in arrest of judgment, which latter motion being overruled, exception was entered.

It is claimed by the appellant that the declaration does not set out a cause of action. The first objection made to the declaration is that it does not charge the defendant with negligence. The objection is not well taken. The powder magazine kept by the defendant upon its premises was so situated with reference to the dwelling-house of the plaintiff that it was liable to inflict serious injury upon her person or her property in case of an explosion. It was a private nuisance, and therefore the defendant was liable, whether the powder was carefully kept or not. As a general rule the question of care or want of care is not involved in an action for injuries resulting from a nuisance. If action injury results from the keeping of gunpowder, the person keeping it will be liable therefor, even though the explosion is not chargeable to his personal negligence. 1 Wood, Nuis. §§ 73, 115, 130, 142; Heeg v. Licht, 80 N. Y. 579;Cheatham v. Shearon, 1 Swan, 213;Stout v. McAdams, 2 Scam. 67;Gas-Light Co. v. Thompson, 39 Ill. 600;Nevins v. City of Peoria, 41 Ill. 502;Cooper v. Randall, 53 Ill. 24;Myers v. Malcolm, 6 Hill, 292;Hay v. Cohoes Co., 2 N. Y. 159;Phinizy v. Augusta, 47 Ga. 263;Burton v. McClellan, 2 Scam. 434; Wier's Appeal, 74 Pa. St. 230.

The second objection to the declaration is that it does not specifically aver the powder magazine to be a nuisance. It was not necessary to use the word ‘nuisance,’ if the facts alleged constituted a nuisance. The declaration avers that it was the duty of the defendant to so use its premises as not to jeopardize the buildings of the plaintiff, and not to store upon its premises any dangerous substance whereby plaintiff's property might be destroyed in case of an explosion; that the defendant did keep upon its premises a magazine of gunpowder, dynamite, etc., and stored therein a large amount of gunpowder, dynamite, etc.; that the gunpowder, dynamite, etc., so kept upon said premises, exploded; and that by means of such explosion ‘the material of which such magazine was constructed was then and there driven with great force and violence upon and against the property of the plaintiff, hereinbefore described,’ and that ‘the following property of the plaintiff was, by means of such explosion, struck by flying missiles, rocks, and stones, and was wrecked and torn by means of the concussion of the air, then and there caused by said explosion, and was totally destroyed and lost, and was of great value, to-wit: One two-story framed welling,’ etc. A private nuisance is defined to be ‘anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.’ 3 Bl. Comm. 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. Heeg v. Licht, supra. The averments of the declaration bring the present case within the definition thus quoted. The fact that the magazine exploded shows that it was dangerous. The fact that the explosiondestroyed plaintiff's buildings shows that the keeping of gunpowder in the magazine, considered with reference to ‘the locality, the quantity, and the surrounding circumstances,’ constituted a nuisance per se. Heeg v. Licht, supra; Wood, Nuis. § 142, supra. The declaration contains two counts. The second count, in addition to the averments of the first, as above set forth, further avers that there was an ordinance in the town of Lake ordaining that ‘no powder magazine or place for storing or keeping gunpowder or other explosive material shall be kept or maintained within the town: provided, however, the provisions of this section shall not be held or construed to apply,’ etc., to any magazine located upon a lot of a certain size and area; and that the defendant's magazine was located upon a lot of a smaller size than that required by the ordinance. It is claimed by the defendant that the injury to the plaintiff's property was not caused by the...