action here being trespass on the case, we need not consider the nice and finespun distinction as to direct and consequential injury, on which rested the choice between the two forms of action, resulting formerly in so many nonsuits, discussed in Jordan v. Wyatt, 4 Gratt. 151 and elsewhere, as the enactment found in section 8, chapter 103, Code, that "in any case in which an action of trespass will lie there may be maintained an action of trespass on the case," does away with it in this case. We cannot set aside the verdict for excessiveness of damages. Therefore we affirm the judgment. 512. PAGE v. DEMPSEY. (1906. 184 N. Y. 245, 77 N. E. 10.) Edward T. Bartlett, J.: The law applicable to this situation has been settled by the decisions of this Court. If the premises of the plaintiff were invaded by projectiles of any kind, it would be a trespass, for which damages could be recovered, although there was no proof of negligence or want of skill. Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; St. Peter v. Denison, 58 N. Y. 416; Sullivan v. Dunham, 161 N. Y. 290. Where the injury involves no trespass upon the plaintiff's premises, but is due solely to concussion, causing great disturbance, jarring and vibration of the earth or air, the plaintiff to maintain an action to recover damages must prove that the work was performed in a negligent and improper manner; the law governing this phase of the case was considered in Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552, in an able and elaborate opinion of Andrews, Ch. J. 513. BRADFORD GLYCERINE COMPANY v. ST. MARY'S WOOLEN MANUFACTURING COMPANY. (1899. 60 Oh. 560, 54 N. E. 628.) Bradbury, C. J. [in an action for injuries caused by the bursting of a steam-boiler]: To my mind, the analogy between the act of storing so highly explosive and dangerous an agency as nitroglycerine on one's premises and that of conducting a business thereon which requires for its successful operation the use of steam, is not complete, although each is an explosive. Doubtless both are dangerous agencies, when control over them is lost. The use of steam has, however, so generally been employed in every productive industry that every owner of real property may reasonably be held to contemplate the contingency of its being employed upon adjacent premises, and to enjoin his property subject to that risk. In a great city like New York or Chicago, where numerous and varied industries are conducted, there are doubtless many thousands of places where steam is employed. The entire population of such a city is interested, and most of them directly or indirectly benefited by these industries. Large numbers of them labor by day in factories where steam furnishes the motive power, and many of them sleep at night in buildings containing engines in active operation. The modern steam boiler and engine cannot be said to be such a menace to property and human life as to constitute a nuisance per se. They cannot, as such, be driven from the centres of population. Not so, however, with gunpowder and nitroglycerine. These latter agencies, on account of their dangerous character, may be, and usually, if not universally, are, driven into the suburbs of towns and cities, remote from human habitations and valuable structures. Under the circumstances that surround the productive arts and industries of to-day, a modification of the strict rule of liability in favor of those who employ steam in such arts or industries may not be inconsistent with its assertion against those who store gunpowder and nitroglycerine, or blast rocks, adjacent to the property of others. That public policy which seeks to secure the welfare of the many may demand such modification. Whether upon such grounds, or for any other reasons, such a modification of the rule should obtain in the case for the use of steam is not, of course, before the Court, and the question is only considered in this brief way to show that there may be no irreconcilable conflict between the cases that have absolved the owners of boilers from liability for the consequences of an explosion occurring without their fault, and the conclusions reached by us in the case under consideration. Doubtless, gunpowder, nitroglycerine, and other dangerous explosives are useful agencies in many industries, as well as steam. But conceding that, in the case of steam boilers, the extensive and varied uses to which steam is devoted, and the comparatively slight danger arising from its use, require, on principles of public policy, which regards the interests of the great body of the people, that every owner of real property should be held to possess it subject to the right of his neighbor to erect a manufactory and employ steam on adjacent premises, yet it does not necessarily follow that such owner should possess his property also subject to the right of his neighbor to erect a powder or nitroglycerine magazine in his vicinity. The existence of a manufacturing establishment, although it employ steam as a motive power, may be, and doubtless is, in many instances, a positive benefit to real property in its vicinity, and instead of diminishing may enhance its value; while, on the contrary, the erection and use of a nitroglycerine magazine could have no other than a disastrous effect on the value of all real property in its vicinity. We think, therefore, the right to maintain the former may be placed upon grounds that cannot apply to the latter. 514. TENANT v. GOLDWIN KING'S BENCH. 1705 1 Salk. 360 [Printed ante, as No. 268.] 515. TARRY v. ASHTON HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION. 1876 L. R. 1 Q. B. D. 315 [Printed ante, as No. 400.] 516. AINSWORTH v. LAKIN SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1902 180 Mass. 397, 62 N. E. 746 EXCEPTIONS from Superior Court, Hampden County; JOHN A. AIKEN, Judge. Action by one Ainsworth against one Lakin for damages to a stock of goods in a building which was crushed by the fall of the walls of an adjoining building, which had been partly destroyed by fire, and which had been left standing from the time of the fire on March 11th to March 27th, which was the date of the injury. Judgment in favor of the plaintiff brings exceptions. Exceptions overruled. J. B. Carroll and W. H. McClintock, for plaintff. R. A. Allyn, S. S. Taft, and A. S. Kneil, for defendant. KNOWLTON, J. 1. The defendant's intestate was the owner of the land of the first two stories of the building which stood upon it before the fire. The third story had been conveyed by the former owners to Lewis, Noble, and Laflin, trustees, to hold during the life of the building. By the fire the life of the building was destroyed, and the ownership of Lewis and others in the third story was terminated. . . . As owner of the land and the structures upon it, which were subject to the power of gravitation, and likely to do injury to others if they fell, the defendant's intestate owed certain duties to adjacent landowners. His duty immediately after the fire was affected by the fact that until then he had had no ownership or control of the upper part of the wall, and that the condition of the whole had been greatly changed by the effect of the fire and the destruction of the connected parts. For dangers growing out of changes which he could not prevent he was not immediately liable. Gray v. Gaslight Co., 114 Mass. 149, 19 Am. Rep. 324; Mahoney v. Libbey, 123 Mass. 20, 25 Am. Rep. 6. The jury were therefore instructed that, before a liability could grow up against the defendant's intestate after the fire, he was entitled to a reasonable investigation and to take such precautions as were required to prevent the wall from doing harm. 2. We come next to the question, What was his duty and what was his liability after the lapse of such a reasonable time? There is a class of cases in which it is held that one who, for his own purposes, brings upon his land noxious substances or other things which have a tendency to escape and do great damage, is bound at his peril to confine them and keep them on his own premises. This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed as should not be permitted except at the sole risk of the user. The standard of duty established by the Courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless be provides safeguards whose perfection he guarantees. The case of Rylands v. Fletcher, L. R. 3 H. L. 330, 1 Exch. 267 ante, No. 509], rests upon this principle. In this Commonwealth, the rule has been applied to the keeping of manure in a vault very near the wall and cellar of a dwelling house of an adjacent owner: Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56; see, also, Fitzpatrick v. Welch, 174 Mass. 486, 55 N. E. 178, 48 L. R. A. 278. That there are uses of property not forbidden by law to which this doctrine properly may be applied is almost universally acknowledged. This rule is not applicable to the construction and maintenance of the walls of an ordinary building near the land of an adjacent owner. In Quinn v. Cummings, 171 Mass. 255-258, 50 N. E. 624, 626, Mr. Justice HOLMES shows that in reference to the danger from the falling of a structure erected on land "the decision as to what precautions are proper naturally may vary with the nature of the particular structure." He says: "As it is desirable that building and fences should be put up, the law of this Commonwealth does not throw the risk of that act, any more than of other necessary conduct, upon the actor, or make every owner of a structure insure against all that may happen, however little to be foreseen." . . . The duty which the law imposes upon an owner of real estate in such a case is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises. . . . The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual, and, in a sense, natural, as incident to the ownership of the land. The rule first referred to applies to unusual and extraordinary uses which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use. In England this rule, which was laid down in Rylands v. Fletcher, supra, in reference to a reservoir of water, has since been held to be inapplicable where the collection of the water is in the natural and ordinary use of the land: Fletcher v. Smith, 2 App. Cas. 781; see Carstairs ◊. Taylor, L. R. 6 Exch. 217. So far as we know, there is no case in which it has been applied to the erection or maintenance of the walls of an ordinary building. The construction which should be put upon the judge's charge in regard to liability for standing walls is by no means certain. Some broad statements in it might seem to indicate that he was laying down a rule applicable to the construction and maintenance of walls of ordinary buildings so situated that if they fall they will be likely to injure the property of the adjacent owner. If this were the true meaning, the instructions would be wrong. But, taking the charge in its different parts in connection with the facts stated in the bill of exceptions, we think it was intended to state the rule applicable to the kind of wall that the jury were considering, and not to the walls of the buildings generally. . . . Instead of being a part of a building adapted to occupation, it was a part of the ruins of a building. To maintain such a wall after the expiration of a reasonable time for investigation and for its removal would not be a proper and reasonable use of one's property. It was the duty of the defendant not to suffer such a wall to remain on his land, where its fall would injure his neighbor, without using such care in the maintenance of it as would absolutely prevent injuries, except from causes over which he would have no control, such as vis major, acts of public enemies, or wrongful acts of third persons which human foresight could not reasonably be expected to anticipate and prevent. This was the rule of the law stated by the judge to the jury. With this construction of the charge we think that the jury were rightly directed to a consideration of the evidence on the principal issue of fact. . . . Exceptions overruled. 517. MARTIN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY SUPREME COURT OF KANSAS. 1909 81 Kan. 344, 105 Pac. 451. [Printed ante, as No. 403.] 518. HOGLE v. FRANKLIN MANUFACTURING COMPANY COURT OF APPEALS OF NEW YORK. 1910 199 N. Y. 388, 92 N. E. 794 APPEAL from Supreme Court, Appellate Division, Fourth Depart ment. Action by Mary A. Hogle against the H. H. Franklin Manufacturing Company. From a judgment of the Appellate Division (128 App. Div. 403, 112 N. Y. Supp. 881) affirming a judgment for plaintiff, defendant appeals. Affirmed. For several years prior to the 21st of August, 1906, the plaintiff resided with her husband in a house on West Marcellus Street in the city of Syracuse; the lease from James Doheny, the owner, being in the husband's name, as lessee. The lot upon which the house stands is 34 by 100 feet, and the rear thereof adjoins the land of the defendant, upon which there is a large building several hundred feet long used for the manufacture of automobiles. Between the lot on which the defendant's factory stands and the lot occupied by the plaintiff and her husband, which for convenience will be called the "plaintiff's lot," there is a vacant space 10 feet wide which is not used for storage or dumping purposes, or for any purpose except the admission of light and air. At the rear of plaintiff's lot is a tight board fence 6 feet high, and the space between the fence and her house, 20 by 34 feet, is used as a garden. Each floor of the factory has windows overlooking the plaintiff's premises, and on each of said floors are many mechanics and laborers in the employ of the defendant. |