Prussak v. Hutton , 30 A.D. 66 ( 1898 )

Merwin, J.:

The recovery in this case is for personal injuries sustained by the plaintiff in consequence of the explosion on the 5th of -July, 1893, of a powder house or magazine situated within the limits of the city of ' Kingston and owned by the defendant Hutton, and leased by him to the defendant The Baffin & Rand Powder Company, and used,' as it, is claimed, by or for the benefit -of -the firm, of Yan Deuseú Brothers, of whom the other defendant Yan Deusen is the survivor.

The trial court held that upon the undisputed facts all the defendants were liable in case the powder house was a nuisance ; and the question whether or not it was a nuisance was submitted to the jury, together with the question of the amount of damages in case they found there was a nuisance.

The principles laid down in the case of Heeg v. Licht (80 N. Y. 579) justified, we think, the submission of the case to the jury.

The main question here is whether the trial court erred in holding that all the defendants were liable in the event of a finding of the existence of a nuisance.

The magazine was built bv Hutton in 1878 on a lot then and still owned by him. It was built for the purpose of storage of powder, and from the time it was built it was used right along. On August 13, 1891, Hutton leased the lot and magazine to the Laflin & Rand Powder Company for the term of five years at an annual rent. It was the expectation of both parties that the magazine would be used for the storage of powder. The rent was paid up to the time of the explosion. The lessee was engaged in the manufacture of powder • at its mills in the town of Esopns. It sold powder to the Schaghticoke Powder Company, and, by the direction of' the latter company, it delivered the powder to Van Deusen Brothers, who kept a drugstore in the city of Kingston. They gave receipts for the powder as it was- brought to their store by the teams of the Laflin & Rand. Powder Company. The Van Deusens kept the keys of the magazine, and as the powder was brought to their store they would send a man along with the keys or give the keys to the drivers, and the powder would then be deposited in the magazine. This method of deposit or storage was with the knowledge and consent of the Laflin & Rand Powder Company. The Van Deusens received the powder for the purpose of sale on commission for the Schaghticoke Company. As they made sales they took the powder from the magazine and delivered it to the purchasers. ■ The average amount on hand in the powder house was forty or fifty kegs. At the end of every month the Van Deusens rendered to the Schaghticoke Company an account of what they sold, receiving their commissions thereon.

Clearly all of the defendants participated in the maintenance of the powder house, and the trial court did not, we think, err in holding them all liable. (Wood Nuis. [3d ed.] §§ 31, 73, 142, 832, 875; Pickard v. Collins, 23 Barb. 454 ; Chenango Bridge Co. v. Lewis, 63 id. 115 ; Irvine v. Wood, 51 N. Y. 228 ; Ahern v. Steele, 115 id. 218 ; McAndrews v. Collerd, 13 Vroom [N. J.], 189 ; Comminge v. Stevenson, 76 Tex. 642 ; 16 Am. & Eng. Ency. of Law, 981.)

The .dwelling house, in'which the plaintiff and her husband lived, and where the plaintiff received her injury, was 300 or 400 feet from the powder house, and was built before the powdér house, but the plaintiff did not occupy it till' afterward.

It is suggested that the plaintiff assumed the risk, of any explosion,. We think not. (Campbell v. Seaman, 63 N. Y. 568; Brady v.Weeks, 3 Barb. 157 ; Wood on Nuis. §, 76.)

The explosion occurred dining a thunder storm. A witness living in that vicinity testified that there was a heavy thunder storm ;. that he saw the lightning come down, and then heard the- explosion.

"The court charged the jury that if.it was a fact- that the magazine was exploded by lightning, that would constitute no defense to the action if they found that the maintenance of the magazine, in that; place was a nuisance. " . :

This is claimed to be error. , We think not.- The .injury was caused by the explosion. The defendants, at least, were not free from fault which co-operatedl to produce the result., (1 Am. & Eng. Ency. of Law [2d ed.], 595.)

We have examined the other questions - presented* but..find no good ground for reversal.

All concurred. '

Judgment and order affirmed1, with costs.