Amsterdam v. E. I. Dupont de Nemours Powder Co. , 62 Pa. Super. 314 ( 1916 )

Opinion by

Henderson, J.,

The defendant company is engaged in the manufacture of gunpowder, dynamite and other explosives and has for more than twenty years carried on a branch of its business in the State of New Jersey on a tract of land about a mile and three-quarters square having one of its fronts on the Delaware River, at which place, it manufactures nitro-glycerin and various kinds of dynamite. The manufacturing plant covers about twenty-six acres of the tract. The plaintiff lives at Essington, Delaware County, on the opposite side of the Delaware river where he built a brick house in 1907. This house is distant about a mile and eight-tenths from the defendant’s works. It is charged in the statement of claim that the defendant so conducted its business as to injuriously, carelessly and negligently discharge large quantities of high explosives thereby producing such violent concussion as damaged the walls, shattered the windows, displaced fixtures of the said building and disturbed the occupancy and enjoyment and use of the same by the plaintiff, and also that the defendant maintained a nuisance in continuing the manufacture of high explosives at its factory, the effect of which was to injure and damage the plaintiff’s premises. It was' shown at the trial that an explosion occurred at the defendant’s works in 1911 and another in 1913, the effect of which as alleged by the plaintiff was to crack and disturb the north wall of his building, to crack the plaster and fracture the glass in some of the windows. There was evidence of an explosion in 1912, but it is not asserted that any material injury therefrom resulted to the plaintiff. The effect of that in 1911 was to produce “a little crack” in the north wall, to crack the glass in several windows and to jar some pictures from the walls. The principal damage was attributed to the explosion in 1913. No evidence of negligence was introduced and the learned trial judge instructed the jury that the plaintiff could not recover for negligence. The case was submitted to the jury on the question whether the defendant maintained a nuisance and whether the injuries complained of were attributable to the explosions which occurred at the defendant’s works. The verdict being for the defendant there was a finding that the defendant’s manufactory did not constitute a nuisance or that the plaintiff’s injury did not result from the cause alleged by him. There is an entire absence of evidence as to the cause and circumstances of the explosion of 1911. What quantity of material exploded, of what it consisted and what were the circumstances is nowhere made to appear. The evidence is contradictory as to the occurrence of an explosion in 1912 of the character described by one of the plaintiff’s witnesses and the testimony does not show what may have exploded at that time nor the conditions surrounding' such explosion. The explosion in 1913 to which the plaintiff refers his principal injury occurred in the gelatin mixing house, a building about twenty feet wide by thirty-five feet long. It contained at the time of the explosion a batch of material weighing 2,300 pounds in process of manufacture. In that building gun cotton, nitro-glycerin and other materials were mixed together to make gelatin dynamite. The only witness called by the plaintiff who testified in regard to the material which caused the explosion was the superintendent of the works and his testimony negatived any inference of negligence. The plaintiff’s case on this branch of his complaint rested, therefore, wholly on the application of the maxim res ipsa loquitur.' Unless the court should have instructed the jury that the occurrence of the explosion permitted the inference of negligence the action could not be maintained for that cause. In view of several comparatively recent decisions of the courts of this State it is unnecessary to discuss the numerous authorities which the diligence of the learned counsel for the appellant has presented for our consideration. We regard it as now well settled in this State that negligence is not to be imputed to a defendant merely from the fact of an explosion of gunpowder or dynamite manufactured by him or in storage on his premises. The importance of these explosives not only as military supplies but in the construction of public works and the development of the resource es of the country has been frequently recognized and the manufacture and possession of them held not to be per se unlawful. Because of their dangerous nature care in manufacture, custody and location must be commensurate with the risk necessarily involved but the question of the exercise of such care is one of fact. In Tuckachinsky v. Lehigh, Etc., Coal Co., 199 Pa. 515, such risk was likened to that arising from the operation of steam boilers and other machinery and apparatus necessary to the prosperity of great communities. The degree of care rises with the danger. It is care according to the circumstances. In the case cited the defendant stored four boxes and a part of a box of dynamite and four kegs and a part of a keg of black powder in its powder house located about seven hundred feet from where the plaintiff lived. There was no evidence of negligence in the care of the explosives or in the management of the magazine and the court held that there was no question of negligence for the jury. In Sowers v. McManus, 214 Pa. 244, the contractor was engaged in widening a railroad bed and used dynamite for blasting purposes in the prosecution of his work. A quantity of this on hand for future use exploded as a consequence of which the plaintiff was injured. In an opinion by the present Chief Justice it was held that the possession of an explosive of the dangerous character of dynamite is not unlawful nor in itself negligent but that care commensurate with the danger of having possession of it must be exercised at all times by those having it in their care and that “as the mere possession of dynamite to be used for a lawful purpose is neither unlawful nor negligent where one is injured by the explosion of it when stored, the burden rests upon him, as in other cases of negligence, of proving either the specific act of negligence that caused the explosion, or such circumstances surrounding it as would justify the inference that the degree of care required by the law had not been observed. When, as here, nothing appears but the explosion itself, there can be nothing but conjecture as to what caused it, and against conjectured negligence no man is called upon to defend, whether the care to be exercised by him be of ordinary or of high degree.” It was held in the same case that the maxim res ipsa loquitur does not apply in such a case. To the same effect is Forster v. Rogers Bros., 247 Pa. 54. This was a case arising out of an explosion of dynamite in which case Mr. Justice Moschziskbr discusses some of the authorities in other states and the Pennsylvania cases and affirms the proposition that “Where the plaintiff’s case does not rest upon the charge of maintaining a nuisance but some special act of negligence is pleaded and relied on it must be proved.” Derry Coal Co. v. Kerbaugh, 222 Pa. 448, was determined in accordance with this principle. The action of the trial judge with respect to the question of negligence was in harmony with the foregoing and other cases.

The evidence bearing on the subject of nuisance comprised a description of the defendant’s plant, the quantity of explosives kept there, the location of the plaintiff’s building with reference to the plant of the defendant and the fact of the explosions with the damage to buildings alleged to have resulted therefrom. The case was submitted to the jury with the instruction that the burden of proof was on the plaintiff to show not only that he was injured but that he was injured by a nuisance maintained by the act of the defendant in keeping on its property large quantities of explosive material or such quantity as by explosion was calculated to produce the injury of which the plaintiff complains. The charge defined the legal meaning of “nuisance” and repeated the instruction by directing the attention of the jury to the inquiry whether the defendant unreasonably maintained on its property large quantities of explosive material ; how susceptible this material was to be exploded accidentally or otherwise; how frequently explosions occurred ; over what area such explosions had an injurious effect; did this area include the plaintiff’s property and was this property injured by such explosions. The attention of the jury was called to the quantity of dynamite manufactured or stored, the character of the defendant’s business, the density of the population of the neighboring territory and the surrounding circumstances and the direction was given to find for the plaintiff if the jury should conclude that the manufacture and storing of dynamite in the quantity shown to be there in view of the surrounding conditions was unreasonable and unwarranted. That the manufacturing or keeping of such explosives as were produced by the defendant does not constitute a nuisance per se is a conclusion supported by the weight of authorities. It depends on the locality, the quantity, the nature of the explosive, the manner of keeping and the surrounding circumstances whether such manufacture or storage is a nuisance. It is contended by the appellant that this^is a question of law and that binding instructions in favor of the plaintiff should have been given on this point. We are not convinced, how-, ever, that this is the correct view. On the contrary, the question is ordinarily one for the jury; particularly so where as in this case the property said to have been injured was nearly two miles from the place of the explosion and numerous buildings nearer the plaintiff’s works were not so injured. The defendant’s works occupied a small part of a large tract owned by it in an adjoining state; a wide river intervened; explosives of varying strength were manufactured; the business was legitimate; the plant was in operation many years before the plaintiff built his house and only one explosion causing material injury to him is claimed to have taken place in the intervening years. Under such circumstances the question was properly one for the jury. No doubt the court might determine whether a nuisance existed on an established state of facts, but here inferences are to be drawn and conclusions reached from evidence to some extent contradictory and in such a case the jury is the trier of the facts. The difference between a nuisance per se and where a lawful business is carried on so as to become a nuisance is not in the remedy but only in proof of it. In the one case the wrong is established by proof of the mere act and in the other by proof of the act and its consequences : Dennis v. Eckardt, 3 Grant 390. The court could not declare that the defendant’s business conducted about two miles from the plaintiff’s property was such a menace to its safety as to bring the business within the category of nuisances. Under the evidence taking the view most favorable to the plaintiff that was a question of fact. This view is supported by the decisions in Forster v. Rogers Bros., supra, and Kiser v. Kerbaugh, 40 Pa. Superior Ct. 163. Each was the case of the explosion of dynamite in a thickly settled community. In the first of these Mr. Justice Moschzisker said in reversing the judgment, that if the testimony at the next trial should be equally strong in relation to the facts as to the quantity and quality of the dynamite and that the manner in which it was kept created a danger beyond that which ex necessitate always attaches to the lawful possession of such a material and that this danger amounted to a menace to life and property in the neighborhood then they properly could determine that the defendants had maintained a public nuisance which resulted in the destruction of the plaintiff’s building and bring in their verdict accordingly. And in the latter case it was said “The burden rested upon the plaintiff to satisfy the jury on the question of nuisance as complained of.” The question of nuisance or no nuisance was therefore properly submitted as one of fact.

Exception was taken to the refusal of the court to permit the plaintiff’s counsel to call Charles A. Patterson for examination as if on cross-examination. The witness testifies that he was superintendent of the Gibbs-town plant of the Dupont Powder Company and it was contended for the plaintiff that he was thus brought under the operation of the Act of March 30, 1911, P. L. 35, which is an amendment of the Act of May 23, 1887. There is no testimony in the case to show that the witness was a director or officer of the Dupont Powder. Company. From anything that appears- in the case he was simply an employee having charge of the manufacturing of explosives at this particular place. There were assistant superintendents, experts, engineers and we know not how many other functionaries but it does not appear that any of these performed any corporate duties or was in any way concerned in the administration of the corporate business. The case of Manor National Bank v. Lowry, 242 Pa. 559, cited by the appellant has reference to a cashier who is declared by the National Banking Act to be an officer of the corporation and is classed with the president and vice-president. He is directly concerned with the administration of corporate affairs. The law imposes duties on him and his functions have direct relation to the management of the business of the bank as a corporation. Not so with the defendant’s superintendent. From all that appears in the case he was merely charged with overseeing the making of powder in one of the manufactories carried on by the corporation.

It is unnecessary to discuss the numerous assignments of error separately. Many of them relate to the charge of the court but we do not regard them as well founded. The charge was as favorable to the plaintiff as the evidence warranted and the failure of the plaintiff to recover a verdict was not because the question was not clearly presented to the jury.

The judgment is affirmed.