.... erty of persons living in the vicinity. The fact, if it be a fact, that defendant's magazine and factory were located and built at Melrose before plaintiff's house was built, has no bearing on this case. Such circumstances can in no way excuse the maintenance of a nuisance, and the question of whether the magazine and factory of the defendant was a nuisance must be solved without any reference to the location of defendant's factory and magazine." The court also either refused defendant's instructions or modified them on the line of the foregoing. Although the complaint alleges that the damage was caused "by reason of the negligence and carelessness of the defendant," there is not a particle of evidence to support such allegation, 502 and that theory of the action seems to have been abandoned by the plaintiffs during the trial. Under the instructions of the court there were no facts for the jury to consider, for the reason that there was no question but that powder was stored in a magazine or place where, in case of explosion, it would be liable to injure or damage persons or property. The doctrine laid down by the court in the instructions, in substance, declared the business of the defendant, under the circumstances, a nuisance per se, and made it an insurer against all damage arising from whatever cause. It will be observed in this case the plant in question was not devoted to the manufacture of explosives. The only risk attendant upon the business was that risk inseparable from any handling or storing of powder-the same risks that accompany its transportation, sale, use, and application in all the various circumstances in which it is availed of. By the court's instruction there is no distinction between a case of the use and manufacture of this explosive, nor any exception to the rule in a case where a secluded situation is sought in the first instance, and thereafter others are attracted to the locality, perhaps by the very fact of the business of the factory; and by such instruction the defendant is made liable, notwithstanding that the greatest care and prudence may be used in the transaction of the business, and that the explosion or damage is caused by some agent entirely beyond the control of one conducting the business. This is not the law. In Judson v. Giant Powder Co., 107 Cal. 549, 48 Am. St. Rep. 146, 40 Pac. 1020, the damages for which the action was brought were occasioned by an explosion of nitroglycerin in process of manufacture into dynamite in the defendant's powder factory. In that case the judgment for plaintiff was sustained by this court on the ground that the damage resulted from negligence, the court holding that, the explosion having been shown, it was for the company to show by evidence that it was not the result of negligence or carelessness on its part, which it failed to do. Quoting from Shearman and Redfield on Negligence, section 60: "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 503 evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." The court continu ing, says: "This case seems to clearly come within the provi sions of the rule there declared. There is nothing to distinguish it in principle from the army of cases that have been held to come directly within its provisions. Appellant was engaged in the manufacture of dynamite. In the ordinary course of things, an explosion does not occur in such manufacture if proper care is exercised. An explosion did occur; ergo, the real cause of the explosion being unexplained, it is probable that it was occasioned by a lack of proper care." Respondent relies upon Cheatham v. Shearon, 1 Swan, 213, 55 Am. Dec. 734, in support of his theory that the business in question here was a nuisance per se. In Dumesnil v. Dupont, 18 B. Mon. 800, 68 Am. Dec. 750, the supreme court of Kentucky says that the only adjudged case met with in which the principle that a powder magazine is a nuisance per se seems to have been definitely settled is that of Cheatham v. Shearon, 1 Swan, 213, 58 Am. Dec. 734; and adds that "the principles and reasoning on which the decision rests are opposed to the unbroken current of modern authority, English and American, upon this subject." In Kinny v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593, it is said: "The storing or keeping of gunpowder or dynamite in large quantities near the dwelling-houses of citizens in a thickly settled portion of the town, and near a certain public street in said city, is not a nuisance per se; and to constitute such a nuisance there must be negligence or want of due care in storing and keeping it." And in the same case it is said: "After a most careful examination of the common-law text-books and decisions, we have no doubt of the correctness of our conclusion in the foregoing cases, and which exactly accord with the law as declared in People v. Sands, 1 Johns. 78, 3 Am. Dec. 296. Steam-power, gas, electricity, dynamite, and gunpowder are in daily use, and have become indispensable to the convenience of the public and for the public defense. Invention of man and advancement in science have enabled the manufacturer of, or dealer in, these articles to provide the public or the individual with almost, if not altogether, absolute protection against danger or hurt from explosion. And even had the manufacturing and storage of gunpowder, in its early history, been a nuisance at common 504 law, the common-law definition of a nuisance would not include gunpowder at this day." In Tuckachinsky v. Lehigh etc. Co., 199 Pa. 515, 59 Atl. 308, a similar case was considered. In that case, at the time of the accident, the defendant had four and a half boxes of dynamite and four and a half kegs of black powder in a wooden building fourteen feet square and twelve feet high, in an open space near the shaft of its colliery. The mine was not in operation at the time, but some deadwork was being done, in which powder was necessary. The plaintiff was standing in the doorway of her father's house, and was thrown backward down a flight of stairs by the concussion of the air, receiving injuries for which damages were sought. The explosion was caused by lightning. The trial court, in its instructions to the jury, stated that there was no evidence in the case of any "negligence on the part of the defendant, unless it consisted in having the kind and quantity of explosives in the place at the time, for the purpose, and under the circumstances already stated. As to this there is no controversy, no dispute, no question of fact to be determined. The only question to be decided is whether under the law this state of facts constitutes negligence in itself for which the plaintiff may recover in this action." And the court instructed the jury to return a verdict in favor of the defendant. On appeal the supreme court says: "A nuisance has been defined as 'that which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable for him.' The evidence in this case shows that the powder magazine had been in use by the defendant company for more than thirty years, and that plaintiff has resided within about seven hundred feet of it for some sixteen years. Yet there is no testimony to show that any apprehension of danger or any fear of explosion was felt or expressed by anyone during that time. No objection to the location or maintenance of the magazine has been shown. The explosives were stored in small quantities to meet current needs. 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. Negligence in the care of the explosive or in the management 505 of the magazine was neither charged nor proven. The only question in the case was as to whether or not the magazine was in itself a nuisance. We can see nothing in the evidence to support such a finding. The explosives were kept only for use in the mine, and were kept in small quantities. The explosion was caused by no act of the defendant, but by a stroke of lightning. The trial court could not have sustained a verdict for the plaintiff upon the evidence. Its instructions to the jury, found in favor of the defendant, were proper, and the judgment is affirmed.” said in the foregoing opinion, powder, gas, steam, etc., are. equally dangerous, but equally necessary in the present condition of society, and the rule laid down in the above opinion scems to be well settled, not only in Pennsylvania, but in New York and elsewhere: 12 Am. & Eng. Ency. of Law, 2d ed., 514; Schmeer v. Syracuse Gaslight Co., 147 N. Y. 529, 42 N. E. 202. Another case relied upon by the respondent is Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654. In a later case (Lounsbury v. Foss, 80 Hun, 296, 30 N. Y. Supp. 89), speaking of Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, the court says: "Keeping of such material does not, however, necessarily constitute a nuisance per se; that depends upon the locality, the quantity, and the surrounding circumstances. The consequential result of the authorities is, that each case like this must be left to the jury, under proper instructions from the court." It does not appear that when the defendant commenced its business it was not located in a proper place, and at that time sufficiently removed from a residence neighborhood. It was carried on with the utmost care. The damage in question resulted from a cause entirely beyond its control, and without any carelessness or negligence on its part whatever, and under the more recent and better line of authorities, as shown under such circumstances, it is not responsible. The judgment and order are reversed. Shaw, J., Angellotti, J., McFarland, J., and Lorigan, J., concurred. Beatty, C. J., disented. Rehearing denied. Explosives.-The liability for keeping explosives is considered in the monographic note to Kinney v. Koopman, 67 Am. St. Rep. 134140. The mere fact that a railway corporation has explosives in its care does not make it guilty of creating a nuisance, though danger to persons and property along its line is necessarily incident to such transportation. But if a car is unnecessarily and unreasonably delayed at a place so as to subject property to danger for a longer time than would have attended a transportation made with reasonable dispatch, this amounts to a nuisance. And a like result may follow if ordinary care is not exercised in keeping or caring for the car: Fort Worth etc. Ry. Co. v. Beauchamp, 95 Tex. 496, 93 Am. St. Rep. 864, 68 S. W. 502. It has been held that storing and keeping gunpowder and dynamite near dwellings in a thickly settled portion of a city, near a public street, is not a nuisance per se; but to constitute such keeping a nuisance and impose liability for an accidental explosion, there must be negligence: Kinney v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593. Compare Cameron v. Kenyon-Connell Com. Co., 22 Mont. 312, 74 Am. St. Rep. 602, 56 Pac. 358. ESTATE OF GAY. [138 Cal. 552, 71 Pac. 707.] PERPETUITY-Trust to Care for Burial Place.-A testator cannot create a permanent fund in trust, the income of which is to be devoted for all time to the care of his place of interment. (p. 71.) CHARITABLE USE-Fund for Burial Place.-A permanent trust fund attempted to be created by a testator, the income of which is to be devoted for all time to the care of his place of interment, is not a charitable use. (pp. 72, 75.) Archibald Barnard, for the appellant. Walter Perry Johnson, for the respondent. 553 CHIPMAN, C. Martin Francis Quinn, the distributee of the residue of the estate, appeals from the decree of partial distribution to Lizzie Gay, who was one of several legatees of the will of deceased. The second clause of the will reads as follows: "I direct that the sum of $2,000 be set apart out of my estate, and safely invested and reinvested by said Lizzie Gay, |