Liggett v. Excelsior Powder Manufacturing Co.

BLAIR, J. Respondent recovered judgment for damages for injuries suffered when powder stored or in process of manufacture on • appellant's premises exploded as a train on which respondent was a passenger was passing appellant’s plant. After an effort had been made to prohibit action in the Court of Appeals, the cause was heard there and then transferred here. • The answer admits that “at the times mentioned in the petition, it [appellant] was a corporation and owned and operated a plant for manufacturing powder near Holmes Park in Jackson County, Missouri;” avers it owns the tract upon which its plant is situated and that the tracks of the St. Louis & San Francisco Railway adjoin .this tract on the west. The evidence tends to show the village of Plolmes Park is located adjoining the north boundary of appellant’s property; the village consists of a store, post office, blacksmith shop, school- and a number of dwellings, and is a little- over a quarter of a mile from the site of the building in -which the explosion occurred; the school is nearer than any other part of the village; the village of Hickman’s Mill is about one and one-half miles away; the surrounding country is somewhát thickly settled for a farming community, with the usual public roads running through it; two railroad companies used the Frisco tracks which pass the powder plant and operated eight passenger trains and numerous freight trains, daily, over the tracks beside the plant; the explosion occurred in the glaze mill and its force broke windows and doors and wrenched timbers in houses within a radius of more than a mile and a half; threw large iron castings over a quarter of a mile and utterly destroyed the glaze mill, a building fifty by seventy feet in size; the railroad tracks were one hundred to one hundred and fifty yards [120] from the glaze mill at the point at which the train was when the explosion occurred; the glaze mill was used in the final process of manufacturing, and contained eight barrels two and one-half by five feet or more which, in glazing, were half filled with powder and then revolved for the purpose of glazing the contents; when this process was finished the powder was hauled away in tramway trucks in loads of about 600 pounds each. There was also evidence tending to show respondent was injured. Magazine Magazine. I. “A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a. nuisance regardless of the question as to negligence in the manner of keeping it.” [State ex rel. v. Excelsior Mfg., Co., 259 Mo. l. c. 271.] Nuisance II. There was substantial evidence tending to show this plant was a nuisance. [State ex rel. v. Powder Mfg. Co., supra, l. c. 278, 279.] That case involved the same plant; and while the evidence is not identical, it is sufficiently so to justify the application of the rule in that case. Public Highway. III.It is contended the railroad was not a public highway “in such sense that the location of a powder factory close to it could be held to constitute the powder mill a public nuisance.” In dealing with this identical .contention in another case Against thiis appellant (Schnitzer v. Powder Mfg. Co., 160 S. W. l. c. 286), the Kansas City Court of Appeals held plaintiff (in that case) “was as much a user of a public highway as she would have been had she been using the wagon road. So far as the rights of the users are concerned, the character of the use and purpose, not the ownership, of a utility determines whether it should be classed as public or private. ’ ’ [121] The cases cited by appellant hold that railroads are not public highways in such sense (1) that one may-ride without paying fare, or (2) so as “to throw them open as thoroughfares for pedestrains,” or (3) so that they can escape taxation. - These decisions are beside the mark. Railroads are clothed with a. public use. They must carry all who apply and tender proper fare. The public has the right to use them for the purpose of travel. It is the public which does use them. As the Court of Appeals held, it is this use and this right which give roads their character as public highways so far as this case is concerned. Public Eights. IV. The consent of the railroad to the use of the tract beside its tracks for powder-mill purposes could not affect the rights of respondent. The railroad could not bargain away the rights and safety of the public, of which respondent was a member. Evidence of Nuisance. Y. The evidence as to the location of the villages, school, roads, farm houses, etc. was competent. The whole situation within the zone .of danger constitutes the b'asis f°r determining whether a public nuisance existed. One charging the existence of such a nlljgaiice is nof; limited to proof of his own presence within that zone. Concussion. VI. It is urged respondent cannot recover for such of her injuries as were due to concussion. Appellant invokes a rule sometimes applied in cases in which it appears one has resorted “to blasting to adapt his property to a lawful use, that mode being the x A , ’ , , . only proper one, and the work being conducted with due care.” The later tendency is against the rule in such cases. [Hickey v. McCabe, 30 R. I. 346, 27 L. R. A. (N. S.) 425.] The question presented in those decisions was whether proof of negligence was necessary. In this case the proof of the existence of the nuisance and the consequent injury was all that was [122] required. The cases appellant cites are inapplicable. [Scalpino v. Smith, 154 Mo. App. 524; Schnitzer v. Excelsior Powder Mfg. Co., 160 S. W. l. c. 287.] “While the last opinion may not he an .official pronouncement of the Court of Appeals, the conclusion it reaches on this question is correct. instruction YII. It is urged instruction one failed to require the jury to find that the powder was stored and kept dangerously near the railroad track. The omission of word dangerously, or its equivalent, is the ground of this objection. The same instruc.tion tells the jury that the keeping of “large quantities .of explosives dangerously near'to public places, such as railroads or county roads, so as to constitute a menace to the safety of persons while traveling thereon, is a public nuisance.” The answer admits the railroad right of way is adjacent to appellant’s premises. The evidence was clear and undisputed that the glaze mill was hut a short distance from the railroad track. There was no contention about this matter. In these, circumstances, this assignment must he overruled. VIII. Physicians who had treated respondent for her injuries gave testimony as to the conditions they found. One of them was asked, whether the conditions he found could have resulted from the accident as it was described. The question was objected to. The witness answered that “it could cause this condition.” It is contended this constituted an invasion of the province of the jury. The authorities are examined and the point ruled against appellant in Taylor v. Metropolitan St. Ry., 256 Mo. l. c. 208 et seq. Another physician was questioned the same way, hut testified merely that respondent’s condition indicated she- was suffering from violence of some kind. The judgment is affirmed. All concur, except Bond, P. Jwho is absent.