Braley, J.
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 ease of Oulighan v. Butler, ante, 287.
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 [385]*385stored in violation of the R. L. 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 Tewksbury, which maintained no fire department. Neither had it adopted any by-laws regulating the manner in which this, or other explosives, should be stored or kept for sale. No notice ever had been given to the firewards 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, the storage of the gunpowder was made a penal offence, no civil remedy tó recover damages is given by this section to those injured by its explosion. Such a remedy is provided by § 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 § 105, the plaintiff, upon the evidence, is left without any statutory cause of action, and is obliged to rely upon the second count. R. L. c. 102, §§ 93, 103, 105.
In Commonwealth v. Kidder, 107 Mass. 188, 192, it was said: “ A nuisance at common law may consist in the keeping or manufacture of gunpowder, naphtha, or other explosive or inflammable substances in such quantities and places or in such a 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.
[386]*386Under 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.) § 607. 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. Commonwealth v. Kidder, 107 Mass. 188. People v. Sands, 1 Johns. 78. Cheatham v. Shearon, 1 Swan, (Tenn.) 213. Regina v. Lister, Dearsly & Bell, 209. Myers v. Malcolm, 6 Hill, 292. Wilson v. Phœnix Powder Manuf. Co. 40 W. Va. 413. McAndrews v. Collerd, 13 Vroom, 189. Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322. Bradford Glycerine Co. v. St. Mary's Woolen Manuf. Co. 60 Ohio St. 560. Heeg v. Licht, 80 N. Y. 579. Emory v. Hazard Powder Co. 22 S. C. 476. Comminge v. Stevenson, 76 Tex. 642. Rudder v. Koopman, 116 Ala. 332. Wier’s appeal, 74 Penn. St. 230. Compare Dilworth’s appeal, 91 Penn. St. 247 ; Kinney v. Koopman, 116 Ala. 310 ; Dumesnil v. Dupont, 18 B. Mon. 800; Judson v. Giant Powder Co. 107 Cal. 549 ; Kleebauer v. Western Fuse & Explosives Co. 138 Cal. 497.
Where the general public only are annoyed, the remedy would be by indictment. Commonwealth v. Rumford Chemical Works, 16 Gray, 231. Commonwealth v. Parks, 155 Mass. 531, 533. Commonwealth v. Packard, 185 Mass. 64. 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. Quinn v. Lowell Electric Light Corp. 140 Mass. 106. R. L. c. 186. A bill in equity also maybe maintained for an injunction to restrain its further continuance. Davis v. Sawyer, 133 Mass. 289.
In this continued use of their land, at the risk of inflicting injurious consequences upon others, the defendants were under [387]*387a 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. Ainsworth v. Lakin, 180 Mass. 397. See Davis v. Rich, 180 Mass. 235, 237; Rockport v. Rockport Granite Co. 177 Mass. 246, 255. 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. Gorham v. Gross, 125 Mass. 232, 238.
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. 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, rightfully could 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.
Free access — add to your briefcase to read the full text and ask questions with AI
Braley, J.
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 ease of Oulighan v. Butler, ante, 287.
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 [385]*385stored in violation of the R. L. 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 Tewksbury, which maintained no fire department. Neither had it adopted any by-laws regulating the manner in which this, or other explosives, should be stored or kept for sale. No notice ever had been given to the firewards 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, the storage of the gunpowder was made a penal offence, no civil remedy tó recover damages is given by this section to those injured by its explosion. Such a remedy is provided by § 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 § 105, the plaintiff, upon the evidence, is left without any statutory cause of action, and is obliged to rely upon the second count. R. L. c. 102, §§ 93, 103, 105.
In Commonwealth v. Kidder, 107 Mass. 188, 192, it was said: “ A nuisance at common law may consist in the keeping or manufacture of gunpowder, naphtha, or other explosive or inflammable substances in such quantities and places or in such a 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.
[386]*386Under 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.) § 607. 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. Commonwealth v. Kidder, 107 Mass. 188. People v. Sands, 1 Johns. 78. Cheatham v. Shearon, 1 Swan, (Tenn.) 213. Regina v. Lister, Dearsly & Bell, 209. Myers v. Malcolm, 6 Hill, 292. Wilson v. Phœnix Powder Manuf. Co. 40 W. Va. 413. McAndrews v. Collerd, 13 Vroom, 189. Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322. Bradford Glycerine Co. v. St. Mary's Woolen Manuf. Co. 60 Ohio St. 560. Heeg v. Licht, 80 N. Y. 579. Emory v. Hazard Powder Co. 22 S. C. 476. Comminge v. Stevenson, 76 Tex. 642. Rudder v. Koopman, 116 Ala. 332. Wier’s appeal, 74 Penn. St. 230. Compare Dilworth’s appeal, 91 Penn. St. 247 ; Kinney v. Koopman, 116 Ala. 310 ; Dumesnil v. Dupont, 18 B. Mon. 800; Judson v. Giant Powder Co. 107 Cal. 549 ; Kleebauer v. Western Fuse & Explosives Co. 138 Cal. 497.
Where the general public only are annoyed, the remedy would be by indictment. Commonwealth v. Rumford Chemical Works, 16 Gray, 231. Commonwealth v. Parks, 155 Mass. 531, 533. Commonwealth v. Packard, 185 Mass. 64. 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. Quinn v. Lowell Electric Light Corp. 140 Mass. 106. R. L. c. 186. A bill in equity also maybe maintained for an injunction to restrain its further continuance. Davis v. Sawyer, 133 Mass. 289.
In this continued use of their land, at the risk of inflicting injurious consequences upon others, the defendants were under [387]*387a 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. Ainsworth v. Lakin, 180 Mass. 397. See Davis v. Rich, 180 Mass. 235, 237; Rockport v. Rockport Granite Co. 177 Mass. 246, 255. 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. Gorham v. Gross, 125 Mass. 232, 238.
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. 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, rightfully could 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 [388]*388contemplated 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 its contents temporarily. Gray v. Harris, 107 Mass. 492. Lane v. Atlantic Works, 111 Mass. 136. Derry v. Flitner, 118 Mass. 131, 134. McCauley v. Norcross, 155 Mass. 584, 586. Wetherbee v. Partridge, 175 Mass. 185. Shipley v. Fifty Associates, 106 Mass. 194, 200. Koplan v. Boston Gas Light Co. 177 Mass. 15, 27. Turner v. Page, 186 Mass. 600.
Whether placed in the magazine, or on wagons, the primary duty still rested on the defendants so to handle their gunpowder as not to jeopardize persons or property in the vicinity. Bower v. Peate, 1 Q. B. D. 321. Pickard v. Smith, 10 C. B. (N. S.) 470. Stewart v. Putnam, 127 Mass. 403. Woodman v. Metropolitan Railroad, 149 Mass. 335, 340. Ainsworth v. Lakin, 180 Mass. 397. Compare Patnoude v. New York, New Haven, & Hartford Railroad, 180 Mass. 119, 120.
The explosion undoubtedly was rendered more destructive by the simultaneous exploding of the different magazines, yet the plaintiff was entitled to maintain her action against each or all who contributed to her injury. Boston & Albany Railroad v. Shanly, 107 Mass. 568, 579. Oulighan v. Butler, ante, 287.
She further seeks to hold the defendants liable for the discharge of the contents of the second building owned by them, but leased and occupied at the time by their tenant, for the storage of gunpowder. It is enough to say that this claim cannot be sustained, as the declaration contains no sufficient allegations setting forth such a cause of action.
There remains for consideration the effect of an instrument alleged to have been executed by the plaintiff, under which the [389]*389defendants contend that by the general clause “ all other claims and demands which we may have by reason of damage of any name or nature arising out of said explosions”, she released them from any liability for damages covered by the present action.
It was a serious question of fact whether this instrument was executed under such circumstances as to make it legally binding upon her, and if it is found to have the inclusive effect for which the defendants contend, this issue should have been submitted to the jury. O’Donnell v. Clinton, 145 Mass. 461.
When considered as an attempt to assign a claim for her personal injuries, no title passed to the assignee, as such a claim was unassignable before judgment. Rice v. Stone, 1 Allen, 566. Stone v. Boston & Maine Railroad, 7 Gray, 539. Linton v. Hurley, 104 Mass. 353. Bennett v. Sweet, 171 Mass. 600. Robinson v. Wiley, 188 Mass. 533.
But if, while expressed in the form of an assignment, it was the intention of the parties that the instrument should operate as a technical release, the defendants are not parties ; neither are there any recitals that it was made for their benefit. No appropriate words are found which give it this effect, and being unambiguous, parol evidence was inadmissible to explain or vary its terms. Hammond v. Pinkham, 149 Mass. 356, 359. Furthermore, the claim was not extinguished, but on the contrary is expressly assigned as an existing cause of action.
The defendants further contend that the writing may be given effect as a power of attorney, authorizing the agent to release the demand. Even then, so long as the power remained unexecuted, it was revocable at the pleasure of the plaintiff. The agency conferred was in conjunction with the subject matter of the assignment, the consideration of which so far as it relates to the wrong to her person had fully failed. Upon this part of the instrument becoming inoperative, the accompanying power became a mere naked authority, uncoupled with any vested interest of the agent, or without conferring upon him any valuable independent rights as a consideration.
By the defendants’ amended answer, pleading the assignment as a release, or by the evidence, it nowhere appears that any further relinquishment of her claim was attempted. It accord[390]*390ingly may be assumed that after delivery and payment of the money, no steps were taken to exercise the power, or to effect an adjustment before the bringing of this action.
In commencing the ..action, and proceeding to trial, the plaintiff could be found to have manifested her intention to withdraw any authority she previously may have delegated. Thereupon it would be terminated by an implied revocation, of which the attorney, upon the evidence, must be presumed to have had knowledge. The plaintiff, consequently, is not barred from prosecuting her action.
We are of opinion, for the reasons stated, that the case should have been submitted to the jury, and that the ruling directing a verdict for the defendants was wrong.
Exceptions sustained.