247 Pa. 54 | Pa. | 1915
Opinion bt
On February 8,1912, at about 7.30 p. m., an explosion in a frame building belonging to the plaintiff demolished the structure. It appears from the evidence presented by the plaintiff that in June, 1911, a room in her building was taken by the defendants for office purposes; that they kept dynamite there without the knowledge or consent of the plaintiff; that on the day of the explosion they purchased and had delivered to them at this office “50 pounds of dynamite containing 20 pounds of nitroglycerine” ; that the office had a gas stove in it which was burning at 5 o’clock that afternoon; that a box containing some of this dynamite was in the room about
We shall not attempt specifically to rule each of the nineteen assignments of ex*ror; bxxt, since the case must go back for a re-trial, we shall pass upon such matters as seem necessary to a proper understanding of what we deem to be the applicable principles of law. Considerable discussion is to be found in the books concerning what constitutes a nuisance per se in connection with the use and storage of explosives; but, as was truly said by Mr. Justice Sharswood in Wier’s App., 74 Pa. 230, 241, “While it may be easy to draw the line between what is and what is xiot a nxxisance......it is by no means so easy to detex*mine whether the circumstances of any particxxlar case ought to place it on one side or the other of that line.” The subject is dealt with at some length in Jxxdson v. Giant Powder Co. (Supreme Court of California), 29 L. R. A. 718, and many cases from jurisdictions all over the coxxntry are there noted; also see Kleebauer v. Western Fuse & Explosives Company, 60 L. R. A. 377, and Kinney v. Koopman, 37 L. R. A. 497. The weight of authority seems to be to the effect that “the keeping of such material does not necessarily
We do not seem to have any authority in Pennsylvania precisely upon the point as to whether the mere storage of a high explosive, such as dynamite, in a populous neighborhood, constitutes a nuisance per se, but different phases of the general subject are discussed in several of our cases; first, in Wier’s App., supra, where the erection of a powder house was restrained as a nuisance, and next, in Dilworth’s App., 91 Pa. 247, where a decree enjoining the erection of a powder house as a nuisance was reversed. In Tuckachinsky v. Coal Co., 199 Pa. 515, an explosion occurred from dynamite and powder stored in small quantities in a wooden building; when this magazine was originally located it was not near any habitation, but “with the growth of the community” the population settled nearby. In determining that the facts in that case did not constitute a nuisance per se, we said (p. 518), “Such materials are always dangerous, but as their use is essential to the work of mining, it is impossible to protect absolutely persons or property in the immediate vicinity; the risk is similar to that arising from the operation of steam boilers, and other machinery, and apparatus necessary to the prosperity of great communities”; and, in the absence of evidence showing some specific negligence in the manner of keeping the explosives, we affirmed binding instructions for the defendant. In Sowers v. McManus, 214 Pa. 244, the action was against a contractor to recover
The plain thought running through all our cases is that in Pennsylvania the mere possession and storage of dynamite for a lawful purpose in a neighborhood where people reside are not per se a public nuisance, but the attending circumstances may constitute them such. In other words, in some cases, negligence of a character to make that a nuisance which otherwise would be lawful may appear in the attending circumstances; therefore, after an explosion, when deciding whether or not a public nuisance existed in connection with the storage of the material which exploded, the question of the manner in which it was kept — whether negligently or otherwise —may enter into the consideration; but when it is once determined upon sufficient evidence that such a nui
A city ordinance was pleaded and admitted in evidence, which did not by its express terms attempt to classify any particular fact or set of facts as constituting a public nuisance, but merely declared the various acts thereby forbidden, to be unlawful and subject to a penalty. The ordinance provided that it should not be lawful “to manufacture, prepare or use any nitroglycerine or any compound of which nitroglycerine is a component part within the limits of said city,” or, “to carry or convey” it “in greater quantities than one ounce,” or “to prepare, use or explode any torpedo” made of such a compound “in which torpedo a greater quantity of nitroglycerine is used than one ounce.” It is to be noticed that the ordinance makes no express provision regulating the storage or mere possession of the articles therein referred to; and the word “use” as it there appears must be given its ordinary meaning, i. e., the act of employing the article or converting it to some service. If the explosion in this case had occurred while the dynamite was being prepared, conveyed or actually used by the defendants, then the ordinance would have entered into the case as in some degree relating to the specific act complained of, and it properly could have been introduced as evidence of the “municipal expression of opinion” upon the subject under investigation, to be considered with all the other evidence in the case; but under the facts relied upon by the plaintiff, the ordinance had no application and should have been excluded, and the court should not have told the jury, as it in effect did, that its violation created a nuisance per se; under our cases, this was clear error: Phila. & Reading R. R. Co. v. Ervin, 89 Pa. 71; Ubelmann v. American Ice Co., 209 Pa. 398; Shaffer v. Roesch, 215 Pa. 287.
The injury to the plaintiff’s property was permanent in character; hence, the proper measure of damage was the difference between the value of the real estate before and after the explosion, that is, the deterioration in the market value of the whole property caused by the destruction of the building (Miller v. Hanover & McSherrytown Water Co., 240 Pa. 393; Wagner v. Purity Water Co., 241 Pa. 328, 334; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411, 421-2); the values to be proved by experts in the customary way, with the usual right in the plaintiff to ask compensation for delay in the payment of the ascertained damages. In the trial under review there seemed to be some doubt as to the measure of damages, and error was committed by the admission of certain evidence in relation thereto. On the examination in chief of the plaintiff, under objection and exception, she testified to the earning capacity of the property according to its use at the time of the explosion; she first gave a summary of the rents, without more; then one of her witnesses, in answer to questions propounded by plaintiff’s counsel, stated an opinion concerning the fairness of these rentals, and avowed that they formed the exclusive standard upon which he based his estimate of the value of the property. As soon as the latter testimony was in, counsel for the defendant immediately objected and asked that it be stricken out, and upon the refusal of this motion he at once secured an exception. The appellee contends that after testimony has been received without an immediate objection to the questions which elicit it, a refusal to strike out the evidence is not reviewable, citing McDyer v. East Penna. Rys. Co., 227 Pa. 641, 646. In that case, however, there was no objection when the testimony was introduced, and the
Finally, in order briefly to dispose of the few remaining material matters called to our attention by the assignments of error, we take occasion to suggest that the persons who maintained the alleged public nuisance would be liable, if it were found to be such, not those who held the contract for the bridge where the dynamite eventually was to be used. Of course, if the defendants were not in control of the office and were not responsible
The first and second assignments of error, covering the ordinance relating to explosives, the eleventh and thirteenth assignments, as to the rentals, and the fourteenth and fifteenth assignments, concerning the fire limit ordinance, are all sustained, and the judgment is reversed with a venire facias de novo.