Sloss-Sheffield S. & I. Co. v. Prosch

de GRAFFENRIED, J. The questions presented to us by this record challenge the sufficiency of certain counts of the appellees’ complaint, when tested on demurrer. The questions presented are of importance, and for that reason the reporter will set out, in his report of this case, counts 1, 8, 5, 6, 9, 13, and 14. The counts referred to will, when read in connection with this opinion, illustrate its full meaning. (1, 2) 1. Dynamite is, in its. nature, a powerful explosive. Its value rests exclusively in that one quality, and if it be true that the appellant, in quarrying, was under the necessity of using dynamite, powder, and other dangerous explosives, the law cast the duty upon the appellant “to keep, handle, and use said explosives in a reasonably safe and careful manner.” This propo — 298 — sition is recognized as sound in all the cases. — Whaley v. Sloss-Sheffield Steel & Iron Co., 164 Ala. 216, 51 South. 419, 20 Ann. Cas. 822; Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119; Rudder v. Koopman & Gerdes, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489; Judson, Ex'r, v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146. In actions of tort, when, in the complaint, the duty to act is shown, the negligent performance of that duty may he alleged in the complaint in the most general terms. — Sou. Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35. The first and fifth counts were sufficient. (3) 2. If the defendant was engaged in operating iron smelting furnaces, and was also engaged in quarrying rock, and if, near and in dangerous proximity to a thickly settled community, it kept stored in a building or magazine, situated, as is alleged in the third count of the complaint, close to “a certain railroad track owned and operated by defendant, and close to certain large slag piles, where hot slag was deposited by defendant, in the course of its operations of said furnaces, and where hot slag was carried from defendant’s furnaces close by said explosives -by engines hauling hot pots containing slag, “a large quantity of dynamite powder,” the defendant was certainly prima facie guilty of maintaining a nuisance. Human experience indicates that where large quantities of such explosives, as dynamite and powder, are stored in isolated places and are carefully guarded by persons of skill, explosions, from unforeseen and unknown causes, sometimes occur, and, if the defendant selected the place named in the complaint for its magazine or house in which to keep stored large quantities of dynamite and powder, it selected a place where such an explosion as the — 299 — one described in tbe complaint might reasonably be expected to occur. The reason which underlies some of the cases cited in Kinney v. Koopman & Gerdes, supra, and Budder v. Koopman & Gerdes, supra, in which the courts held that, under certain conditions, a person who kept high explosives stored in a city or town was not necessarily guilty of maintaining a nuisance, cannot be applied to the conditions which are shown by this complaint to have surrounded the house or magazine in which the plaintiff charges that the defendant kept its dynamite and powder stored. Out of respect to necessity, public and private, electricity and steam, which are also dangerous agencies, are in constant use in our cities, towns, and villages and upon our public highways. The use of these agencies entails upon human life and property some modicum of danger which human skill and foresight cannot prevent, and which must be traced to inevitable accident. These dangers, inherent in the most careful use of such agencies, must be submitted to “in order that the greater good of the public be conserved and promoted.” The care with which the law requires the conductors of electricity to be insulated and placed beyond the reach of the average man in his customary use of our streets and highways, and the care which the law exacts of those who use steam power to maintain properly constructed, equipped, and inspected engines, are indications of the rigid adherence by the law to that salutary declaration of the law that, to use the language of Chief Justice Stone, “there is a limit to this duty (on the part of the citizen) to yield, to this claim and right to expect and demand. * * * ‘Sic utere tuo,’ in such conditions, is enjoined by social obligations and by law.” — Tennessee Coal, Iron & Rail — 300 — road Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48. It may be that it is possible for a magazine for the storage of large quantities of dynamite and powder to be so constructed and operated, at places similar to that described in the complaint, as to render it probably not more dangerous to surrounding property and to the lives of human beings than a similar magazine would be situated in a place not so exposed, but, if so, the defendant has the burden of so showing. Presumptively there was inherent danger in the place mentioned in the complaint. “Presumptions arise from the doctrine of probabilities. The future is measured by the past, and presumptions are created from the experience of the past. What has happended in the past, under the same’conditions, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.” — Judson v. Giant Powder Co., supra. That the defendant was unfortunate in the selection of the place for its magazine we think is most obvious, and we unhesitatingly hold that the third count of the complaint was free from demurrer. 3. What we have said disposes of the assignments of error based upon the action of the court below in overruling the demurrer to the second count of the complaint. 4. In the above case of Kinney v. Koopman & Gerdes, this court, through Coleman, J., said: “We are of the opinion that a count prima facie sufficiently shows a want of due care, which charges the storing of large quantities of gunpowder in a wooden building in a pop-u lous place in the city of Cullman.” In the above case of Rudder v. Koopman & Gerdes, this court, through Head, J., said: “The defendants — 301 — kept, in a wooden store, in a thickly settled portion of the incorporated town of Cullman, where there were, in proximity, many buildings and persons, large quantities of dynamite and gunpo,wder, liable to explode and do serious injury to such persons or property. It did explode, by the burning of the house in which it was kept, with such force and violence as to cast fire brands several hundred feet, and destroy the property of the plaintiff. Under proof of these facts, the defendants are responsible.” (4) While in count 6 the plaintiff alleges that the wooden building in which the explosives were stored was “in or near said town,” it also alleges that it was “in near proximity to many buildings and' persons,” etc. The reason, therefore, of the rule which was declared by Mr. Justice Coleman in Kinney v. Koopman & Gerdes, supra, and by „Mr. Justice Head in Rudder v. Koopman & Gerdes, supra, applies to count 6. For this reason, as well as for the reasons set out in section 1 of this opinion, count 6 was free from demurrer. 5. We see but little substantial difference between count 6 and counts 9, 10, 11, and 12. They come directly within the reason of the rules above announced, and the demurrers to these counts were properly overruled. (5) 6. The question presented by the demurrers to counts 13 and 14 is simply this: Is a person, under the law, guilty of maintaining a nuisance, who keeps stored indefinitely, in a thickly settled neighborhood, large amounts of high explosives, which are liable, as dynamite is liable, to explode and do serious injury to surrounding persons and property, provided the manner1 of such keeping is characterized by no special negligence? While there are expressions in some of our older cases (see Kinney v. Koopman & Gerdes, supra; Rudder v. Koopman & Gerdes, supra; Collins v. A. G. S. R. R. Co., — 302 — 104 Ala. 390, 16 South. 140), which may indicate a contrary view, we are of the opinion that such a keeping is in fact and in law a nuisance. Lord Holt was right. He spoke in the interest Qf human life and human repose and the rights of private property when he said: “Though gunpowder he a necessary thing and. for the defense of the kingdom, yet, if it be kept in such a place as 'is dangerous to the inhabitants or passengers, it will be a nuisance.” When Lord Holt made use of the above expression, the explosive force of gunpowder was, • in comparison with the force of modern explosives, as was the speed of a then sailing vessel to the speed of a modern hydroplane. • While modern methods of preserving these high explosives have probably improved, we are inclined to believe that many of the opinions of common-law judges on the subject now in hand would never have found their way into the books, if, when’they delivered those opinions, explosives had possessed those highly dangerous qualities which now belong to them. A modern bomb possesses, probably, as much explosive force as anciently belonged to a barrel of gunpowder, and, in applying the rules of the common law to present conditions, we must not lose sight of the real reasons which underlie those rules and apply them in accordance with their purpose rather than in accordance with their mere letter. We direct attention to the wording of the rule as we deduce it from what we regard as the sound declaration of our own cases on the subject and from what we regard, as the rule which has been declared by the best adjudicated cases in other states, viz: That he who keeps stored, indefinitely, in a thickly settled neighborhood, large amounts of high explosives which are liable, as dynamite or gunpowder or other high explosives are liable, to explode and do serious injury to surrounding persons — 303 — and property, is guilty of maintaining a nuisance, although the manner of such keeping is characterized by no special negligence. This is certainly the holding in Rudder v. Koopman & Gerdes, supra, and, as there seems to be doubt upon the subject, we might as well now definitely declare the rule. This rule, by its terms, excludes the idea that, if explosives are not kept in such large quantities in a thickly settled community as to do serious injury to surrounding persons and property if they explode or if they, although in such large quantities, are not kept indefinitely in such community, such a keeping is a nuisance. In such instances, for the man, who keeps or has such explosives temporarily in his possession, to-be held liable for injuries resulting from their explosion, there must be shown, to use the language of this court in Rudder v. Koopman & Gerdes, supra, “some special negligence in the manner of keeping them.” It may be that the storage for indefinite periods of large quantities of high explosives in a thickly Settled community would be more convenient to their owner than to keep them stored elsewhere. It may be that a requirement that he shall keep such a place of deposit at a point which subjects the public to less danger in the event of an explosion will entail upon him some inconvenience and expense in keeping supplied, at his place of business, with his usual needs. The needs of the individual must give way to the higher demands of the public for protection against all needless possible, not probable, sources of danger in their lives and in their property. It is the public demand, not the mere private need, for electric lights, electric cars, telephone and telegraph lines, which justifies, in the sight of the law, the imposition upon any human being of the slight modicum of danger which is attendant upon .the maintenance of electric conductors upon our streets and upon our highways. 'The law should be as cáreful in conserving the — 304 — rights of the public in the perfect security of their lives and property as are business men when they go about making their investments. We hardly think a business man would run the risk of placing a handsome edifice by the side of a magazine filled with high explosives if he could find some other convenient place to build it, or that he would be likely to take such a place as a place of residence for himself and family. When the public good requires the use of a particular force which possesses inherent danger to the public, the law will, under appropriate safeguards, permit its use, although it may, now and then, cause, by inevitable accident attendant upon its use, loss of life or property. It will not, however, to suit the mere convenience of a private individual, permit him to keep that which, because of its dangerous qualities, is fraught, in the mere keeping, with grave possible dangers to the property and people of a town or city, indefinitely in a place where, if an explosion occurs, the public will be the sufferers. If the business of the private individual is such as to require the use of dangerous utilities, the law, to meet the requirements of his business permits him, under restrictions, to use such utilities, but it will not permit him to add even a possible danger to the lives and property of the public by keeping indefinitely, for convenience merely, large quantities of high explosives in such a place as that, if an explosion occurs, property and human life will probably be destroyed. — Rudder v. Koopman & Gerdes, supra. In our opinion counts 13 and 14 were not subject to demurrer, and the judgment of the trial court is affirmed. Affirmed. Anderson, C. J., and McClellan and S'omerville, JJ., concur.