Schnitzer v. Excelsior Powder Mfg. Co.

• Decision Date: 06 February 1912
• Citation: 160 S.W. 282
• Parties: SCHNITZER v. EXCELSIOR POWDER MFG. CO.
• Court: Missouri Court of Appeals

160 S.W. 282

SCHNITZER v. EXCELSIOR POWDER MFG. CO.

Kansas City Court of Appeals. Missouri.

February 6, 1912.

1. JUDGMENT (§ 251) — RECOVERY — CAUSE OF ACTION.

A plaintiff can recover only on the cause of action pleaded.

2. NUISANCE (§§ 1, 59) — ELEMENTS — NEGLIGENCE.

Negligence and nuisance are different kinds of torts; negligence in the maintenance of a nuisance being immaterial in determining defendant's liability therefor.

3. PLEADING (§ 34) — DEMURRER — CONSTRUCTION.

The rule of strict construction that must be employed in the examination of a petition attacked by demurrer does not mean an unreasonable or distorted construction, although indefinite and ambiguous expressions should be construed against the pleader.

4. NUISANCE (§ 61) — ACTIONS — PETITIONS — STORAGE OF EXPLOSIVES.

A petition, alleging that defendant kept and stored on its premises combustible and explosive materials in large quantities, and that by reason thereof the same was "liable to explode" and endanger persons in that vicinity, and especially persons traveling upon railroad trains or upon the highway adjoining defendant's storehouse, states a cause of action for maintenance of a nuisance, even though the term "liable to explode" merely denoted a possibility of explosion; the entire petition showing that the presence of explosives was a constant menace.

5. NUISANCE (§ 76) — CONSTRUCTION — NUISANCE — "STOCK."

In an action for damages occasioned by the explosion of powder which plaintiff claimed was kept in such large quantities and in such a populous place by defendant that it constituted a nuisance, the allegation that a large part of defendant's stock exploded must be taken to refer to either the finished product or the materials in the process of manufacture, defendant being a manufacturer of explosives, even though the word "stock" when applied to the business of a merchant means the merchandise kept for sale, and hence proof that the explosion was of unfinished materials does not constitute a variance.

6. NUISANCE (§ 61) — "PUBLIC NUISANCE" — HIGHWAYS — RAILROAD — "PRIVATE NUISANCE."

In determining whether a nuisance is a "public" one, a railroad must be considered as a public highway, and anything which endangers the passengers on the railroad, such as the maintenance of a powder mill which is liable to explode and injure the passengers on the train, constitutes a public nuisance, a nuisance being "public" where it affects the rights enjoyed by citizens as part of the public, and being "private" only where it consists in an injury not amounting to a trespass to the property of a private individual or individuals.

7. NUISANCE (§ 72) — MANUFACTURE — PUBLIC NUISANCE — EXPLOSION — LIABILITY.

While the manufacture and keeping of quantities of explosives is lawful, one who manufactures explosives and keeps a large quantity in a place where the public are likely to be injured if they should explode is guilty of maintaining a public nuisance, and hence one who maintains a powder factory within a few hundred yards of a railroad company and stored vast quantities of explosives close to the railroad tracks, the mill being bounded by public highways and located in the midst of a populous community, is guilty of maintaining a nuisance, and persons injured by an explosion may recover without proof of negligence.

8. NUISANCE (§ 72) — ACTIONS — PROXIMATE CAUSE.

Where plaintiff, a passenger on a railroad train, was injured by an explosion in defendant's powder mill which was a public nuisance, the maintenance of the nuisance, and not the explosion, was the proximate cause of the injury.

9. EXPLOSIVES (§ 8) — LIABILITY — MANUFACTURER — DUTY OF CARE.

A manufacturer of explosives owes the public a duty to protect it from the concussion caused by an explosion just as much as it does to protect it from flying materials thrown by an explosion.

10. NUISANCE (§ 72) — PUBLIC NUISANCE — INJURY TO PRIVATE PERSON — DEFENSE.

A passenger on a railroad train is a traveler on a public highway, and hence his rights to be protected from injury from the maintenance of a powder mill, which constituted a public nuisance, cannot be barred by any contract between the railroad and the powder company to which he was not a party.

11. JUDGMENT (§ 702) — RES JUDICATA — PERSONS CONCLUDED.

In an action to recover for injuries to plaintiff from the explosion of defendant's powder mill, where plaintiff counted from defendant's maintenance of a public nuisance, plaintiff's rights cannot be affected by the judgment

in a suit by the Attorney General on the relation of property owners in the vicinity to have the mill adjudged a public nuisance.

12. APPEAL AND ERROR (§ 930) — REVIEW — PRESUMPTIONS.

In the absence of competent evidence in the record tending to show that the jury rendered a quotient verdict, it cannot be presumed that they did for the mere fact that the verdict was for an odd amount.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by Ethel Schnitzer against the Excelsior Powder Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing was granted February 14, 1913, and before decision on rehearing the appeal was dismissed by agreement of the parties.

Kinealy & Kinealy, of St. Louis, and E. Wright Taylor, of Kansas City, for appellant. Ed. E. Aleshire and S. S. Gundlach, both of Kansas City, and A. G. Young, of Webb City, for respondent.

JOHNSON, J.

Plaintiff, while a passenger on a train of the Kansas City Southern Railway Company, was injured by an explosion of powder kept by defendant on property owned by it adjacent to the railroad. The explosion occurred at daybreak of November 12, 1908, as the passenger train in which plaintiff was riding was passing defendant's property. The concussion was extremely violent and did great damage to the cars and to passengers. Plaintiff was thrown from her seat and severely injured. She instituted this action against defendant, the owner of the explosives, to recover her damages on the ground that her injuries were caused by "a continuing, common, and public nuisance" maintained by defendant.

The petition, in part, is as follows: "Plaintiff states: That defendant is, and was, at all times hereinafter mentioned, a corporation duly organized according to law, to manufacture, store, buy, and sell blasting powders and other highly dangerous explosives. * * * That on or about the 12th day of November, 1908, defendant's plant was located at and near Holmes Park, a village in Jackson county, Mo., where other buildings were erected and maintained by defendant, necessary for defendant's business. That said plant is located within about two hundred (200) yards of the tracks of the St. Louis & San Francisco Railroad Company and the Kansas City Southern Railway Company, public carriers of passengers, operating many trains, both day and night, transporting many persons on said trains, over said tracks. That said railroads, at said time and place, were public highways. That public county roads, traveled by many persons, extended along three sides of the property of this defendant. That said plant is located in close proximity to a public school building, which is regularly and daily attended by many pupils during the greater part of the year, and is also in close proximity to a large number of residences, business and public buildings, inhabited and frequented by large numbers of people in and about said village of Holmes Park, and elsewhere, in said Jackson county, Mo. That on or about the said 12th day of November, 1908, and at other times, defendant kept and stored large quantities of highly combustible and explosive materials. That by reason thereof the same was liable to explode and endanger the lives and limbs of persons being or traveling in the vicinity thereof, and especially persons traveling upon said railroad trains. That the maintenance of said powder mill, at said time and under the conditions aforesaid, was, and is, a continuing, common, and public nuisance. That on or about the 12th day of November, 1908, plaintiff was a passenger, bound for Kansas City, Mo., upon one of the trains on said tracks aforesaid, and while thus lawfully riding and passing in close proximity to defendant's said powder mill, a large portion of defendant's stock exploded with great force and concussion, causing vibrations in the atmosphere sufficient in power and violence to break, shatter, and destroy property a great distance off, and broke in the sides of the car upon which plaintiff was riding, blew the glass from the windows of said car, into the car and upon the passengers therein, and especially upon this plaintiff, seriously cutting plaintiff about the face, head, and neck, in the eyes and around the eyes, cutting and lacerating portions of said plaintiff's face, head, and neck; plaintiff's face, neck, and eyes were seriously powder burned; she was thrown with great violence against portions of said car; her body was compressed, wrenched, and contorted by the great concussion aforesaid; her body, back, and limbs were bruised, wrenched, and strained thereby; she was injured in all of her internal organs, and her entire nervous system was greatly shocked."

Defendant demurred to the petition on the ground that it fails to state a cause of action. The demurrer was overruled and an exception to the ruling of the court was duly made and preserved. The demurrer is pressed upon our attention in the briefs and argument of defendant, but we shall dispose of the questions thus raised in our discussion of the demurrer to the evidence which defendant insists should have been given. The answer admitted that defendant owned and operated the powder mill when the explosion occurred, denied the other allegations of the petition, and contained a special defense to which we shall refer in the opinion.

The trial of the cause resulted in a verdict for plaintiff in the...