[No. 15792. Department One.-June 28, 1895.] CHARLES C. JUDSON, EXECUTOR, ET AL., RESPONDENTS, v. GIANT POWDER COMPANY, APPEL

LANT.

NEGLIGENCE-EXPLOSION OF DYNAMITE-DESTRUCTION OF PREMISES OF GRANTOR-MAXIM.-Where a powder company is charged with negligence in the use of dynamite upon its premises, whereby an explosion was caused resulting in the destruction of the plaintiff's property, the fact that the plaintiff sold the premises where the explosion occurred for the purpose of a dynamite factory is not material, and the maxim, Volenti non fit injuria, does not apply to the case. ID.-RIGHTS OF GRANTOR-CARE OF GRANTEE-ASSUMPTION OF RISK. -In making a grant of premises for the purpose of a dynamite factory the grantor has a right to assume that due care will be exercised in the conduct of the business, and has a right to demand that such care be exercised; and the grantor does not assume the risk of explosions caused by the negligent acts of the owner of the powder works by continuing to do business near their locality after being served with notice of the danger that surrounds the manufacture of dynamite.

ID.-PRESUMPTION OF NEGLIGENCE FROM FACT OF EXPLOSION.-Negligence is prima facie presumed from the fact of the explosion of a nitro-glycerine factory, in the absence of evidence showing care on the part of the employees.

ID. ACCIDENT OUT OF ORDINARY COURSE-CONTRACTUAL RELATION NOT NECESSARY.-When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care, and no question of contractual relation forms an element in such a case.

ID. EXPERT EVIDENCE.-The prima facie case of negligence arising from the fact of the explosion is strengthened and made complete by expert testimony to the effect that, if the factory was properly conducted and the employees were careful during the process of manufacturing, an explosion would not occur.

APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial.

The facts are stated in the opinion of the court.

Galpin & Zeigler, and J. F. Cowdery, for Appellant. Judson and Shepard, having sold the premises for the manufacture of dynamite, cannot recover under the

maxim, Volenti non fit injuria. (Anderson's Dictionary of Law, 1093; Smith on the Law of Damages (1889), 139; Brown's Legal Maxims, 201, 202, and cases cited; Ilott v. Wilkes, 2 Barn. & Ald. 311; Tuff v. Warman, 5 Com. B. N. S., 573; Thomas v. Quartermaine, 18 Q. B. Div. 685; Seymour v. Maddox, 16 Q. B. 326; Woodly v. Metropolitan District Ry. Co., 2 Ex. Div. 384; Gould v. Oliver, 2 Scott N. R. 257, 264; Macon etc. R. R. v. McCon nell, 27 Ga. 481.) The grantors assumed the risk of im minent danger from the dynamite factory, and cannot recover for injury suffered to their adjoining buildings. (De Forest v. Jewett, 88 N. Y. 264; Marsh v. Chickering, 101 N. Y. 396; Harley v. Merrill Brick Co., 83 Iowa, 73; Ray on Negligence, 668; Marquette etc. R. R. Co. v. Spear, 44 Mich. 169; 38 Am. Rep. 242; Goldstein v. Chicago etc. Ry. Co., 46 Wis. 405; City of Bloomington v. Reade, 2 Ill. App. 542; Hubbell v. Yonkers, 104 N. Y. 343; 58 Am. Rep. 522; Abend v. Terre Haute etc. R. R. Co., 111 Ill. 202; 53 Am. Rep. 616; Chicago etc. R. R. Co. v. Pennell, 94 Ill. 454; Toledo etc. R. R. Co. v. Pindar, 53 Ill. 447; Illinois Cent. R. R. Co. v. McClelland, 42 Ill. 355; Marquette etc. Co. v. Spear, supra; Chaffee v. Telephone and Tel. Co., 77 Mich. 625; 18 Am. St. Rep. 424; Levy v. Carondolet Canal etc. Co., 34 La. Ann. 180; Factors & Traders' Ins. Co. v. Welein, 42 La. Ann. 1046; Emery v. Raleigh etc. R. R. Co., 109 N. C. 589.) The burden of proving negligence was on the plaintiff, and, it being presumed that the defendants had performed their duty, the mere fact of the injury from the explosion is not proof of negligence. (Parish v. Williams, 88 Iowa, 66; Cosulich v. Standard Oil Co., 122 N. Y. 118; 19 Am. St. Rep. 475; Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623; Dygert v. Bradley, 8 Wend. 469; Walker v. Chicago etc. Ry. Co., 71 Iowa, 658; Huff v. Austin, 46 Ohio St. 386; 15 Am. St. Rep. 613; Young v. Bransford, 12 Lea, 232; Rose v. Stephens etc. Co., 11 Fed. Rep. 438; Beck v. Carter, 68 N. Y. 283; 23 Am. Rep. 175; Thompson on Negligence, 1227; Nitro-Glycerine case, 15 Wall. 524; Booth v. Rome tc. R. R. Co., 140 N. Y. 267; 37 Am. St. Rep. 552;

Smith v. Kenrick, 7 Com. B. 515; Baird v. Williamson, 15 Com. B., N. S., 376; Wilson v. Waddell, L. R. 2 App. Cas. 95; Benner v. Atlantic Dredging Co., 134 N. Y. 156; 30 Am. St. Rep. 649; Rhodes v. Dunbar. 97 Pa. St. 274; 38 Am. Dec. 221; 7 Am. & Eng. Ency. of Law, 517, 518, tit. "Explosions"; People v. Sands, 1 Johns. 84; 3 Am. Dec. 296; Fahn v. Reichert, 8 Wis. 255; 76 Am. Dec. 237; Clark v. Foot, 8 Johns. 421; Dumesnil v. Dupont, 18 B. Mon. 804.)

Page & Eells, for Respondents.

One engaged in the business of powder making in proximity to other buildings is liable in damages for injury to such buildings by explosion. (Civ. Code, sec. 3479; Colton v. Onderdonk, 79 Cal. 158; 58 Am. Rep. 556; Munro v. Pacific etc. Dredging Co., 84 Cal. 515; 18 Am. St. Rep. 248; Heeg v. Licht, 80 N. Y. 579; 36 Am. Rep. 654; Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18; Laflin etc. Co. v. Tearney, 131 Ill. 322; 19 Am. St. Rep. 34; Emory v. Hazard Powder Co., 22 S. C. 476; 53 Am. Rep. 730; Wier's Appeal, 74 Pa. St. 230; Hay v. Cohoes Co., 2 N. Y. 159; 51 Am. Dec. 279; People v. Sands, 1 Johns. 78; 3 Am. Dec. 296; Myers v. Malcolm, 6 Hill 292; 41 Am. Dec. 744; Cheatham v. Shearon, 1 Swan, 213; 55 Am. Dec. 734; Fletcher v. Rylands, L. R. 3 H. L. 330.) Plaintiffs, by their grant of their right to maintain the powder works did not waive defendant's negligence. (Tipping v. St. Helens Smelting Co., L. R. 1 Ch. App. Cas. 66; City of Sherman v. Langham (Tex., May 13, 1890), 13 S. W. Rep. 1042; Cook v. Champlain Transportation Co., 1 Denio, 98; 1 Thompson on Negligence, 570, citing Delaware etc. Canal Co. v. Lee, 22 N. J. L. 243; Brearly v. Delaware etc. Canal Co., 20 N. J. L. 236; Hatch v. Vermont Cent. R. R. Co., 25 Vt. 49, 70; Spencer v. Hartford etc. R. R. Co., 10 R. I. 14; Morris Canal etc. Co. v. Ryerson, 27 N. J. L. 457, 476; Lyman v. Boston etc. R. R. Co., 4 Cush. 288; Pittsburg etc. R. R. Co. v. Nelson, 51 Ind. 150; Selden v. Delaware etc. Canal Co., 29 N. Y. 640; Dean v. McLean, 48 Vt. 412; Walker v.

Board of Public Works, 16 Ohio, 540; Louisville v. Louisville Rolling Mill, 3 Bush, 416; 96 Am. Dec. 234; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; Biscoe v. Great Eastern Ry. Co., L. R. 16 Eq. Cas. 637; Ricket v. Metropolitan Ry. Co., L. R. 2 H. L. 175.) When the plaintiff shows damage resulting from the act of the defendant, which with proper care does not ordinarily produce damages, he makes out a prima facie case of negligence. (Ellis v. Portsmouth etc. R. R. Co., 2 Ired. L. 138; Butcher v. Vaca Valley etc. R. R. Co., 67 Cal. 524; Hull v. Sacramento Valley R. R. Co., 14 Cal. 387; 73 Am. Dec. 656; Mullen v. St. John, 57 N. Y. 567; 15 Am. Rep. 530; Sedgwick on Damages, 592; Shearman and Redfield on Negligence, sec. 60; Byrne v. Boadle, 2 Hurl. & C. 722; Scott v. London Dock Co., 3 Hurl. & C. 596; Lyons v. Rosenthai, 11 Hun, 46; Vincett v. Cook, 4 Hun, 318; Warren v. Kauffman, 2 Phila. 259.)

GAROUTTE, J.-Respondents recovered judgment for the sum of forty-one thousand one hundred and sixtyfour dollars and seventy-five cents, as damages for acts of negligence. This appeal is prosecuted from such judgment and from an order denying a motion for a new trial. The damages to respondents' property were occasioned by an explosion of nitro-glycerine, in process of manufacture into dynamite, in appellant's powder factory, situated upon the shore of the bay of San Francisco. Appellant's factory buildings were arranged around the slope of a hill facing the bay. Nearest to respondents' property was the nitro-glycerine house; next was the washing-house; next were the mixinghouses; then came the packing-houses, and finally the two magazines used for storing dynamite. These various buildings were situated from fifty to one hundred and fifty feet apart, and a tramway ran in front of them. The explosion occurred in the morning during working hours, and originated in the nitro-glycerine house. There followed, within a few moments of time, in regular order, the explosion of the other buildings, the two

magazines coming last; but, though last, they were not least, for their explosion caused the entire downfall and destruction of respondents' factory, residences, and stock on hand. There is no question but that the cause of this series of explosions following the first is directly traceable, by reason of fire or concussion, to the nitroglycerine explosion. Of the many employees of appellant engaged in and about the nitro-glycerine factory at the time of the disaster none were left to tell the tale. Hence, any positive testimony as to the direct cause of the explosion is not to be had. The witnesses who saw and knew, like all things else around, save the earth itself, were scattered to the four winds.

1. Respondents sold the premises to appellant for the manufacture of dynamite, and it is claimed that the maxim, Volenti non fit injuria, applies, and therefore no recovery can be had. We attach but little importance to this contention. The grant of these premises for the purposes of a dynamite factory in no way carried to appellant the right to conduct its factory, as against the grantors, in any and every way it might see fit. There is no principle of law sustaining such a proposition. Let it be conceded that respondents, by reason of their grant, could not invoke the aid of a court of equity to prevent the appellant from conducting its business; still that concession proves nothing. This action is not based upon the theory that appellant's business is a nuisance per se, but negligence in the manner in which the business was conducted was alleged in the complaint, and is now insisted upon as having been proved at the trial. In making the grant respondents had a right to assume that due care would be exercised in the conduct of the business, and certainly they have a right to demand that such care be exercised.

It is argued that the explosion of all powder-works is a mere matter of time; that such explosions are necessarily contemplated by every one who builds beside such works, or who brings dynamite into his dooryard. It