[Rudder v. Koopman & Gerdes.] works for their own emolument, though for public advantage. "The keeping of gun powder, nitro-glycerine, or other explosive substances, in large quantities, in the vicinity of a dwelling-house or place of business, is a nuisance per se, and may be abated as such by action at law or injunction in equity; and if actual injury results therefrom, the person keeping them is liable therefor, even though the act occasioning the explosion is due to other persons, and is not chargeable to his personal negligence.-Wood on Nuis., § 142; Cuff v. N. & N. Y. R. R. Co., 6 Vroom, 17; s. c., 10 Am. Rep. 215." In Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, (19 Am. St. Rep. 34), the subject was fully considered. Correct syllabi of the opinion are as follows: "Gunpowder magazine situated so near to the dwelling-house of another as to be liable to inflict serious injury to his person or property in case of explosion is a private nuisance, making the owner liable whether the powder was carefully kept or not." "As a general rule the question of care or want of care is not involved in an action for injuries resulting from a nuisance; consequently, if actual injury results from the keeping of gunpowder, the person keeping it will be liable, even though the explosion is not chargeable to his personal negligence. Hence, it is not necessary to charge him with negligence.' The South Carolina and Texas courts hold to like effect.-Emory v. Hazard Powder Co., 24 S. C. 476; Comminge v. Stephenson, Tex. 642. In Weir's Appeal,'74 Pa. St. 230, a distinction is forcibly drawn between the keeping of highly explosive and other objectionable erections as follows: After holding that the storing of gunpowder in large quantities in thickly settled places is a nuisance, the court said: "But it is not confined to cities and boroughs. This court has acknowledged and declared it as a case clearly within the general rule of equity upon this subject, in the opinion of the majority, as pronounced by Mr. Chief Justice THOMPSON, in Rhodes v. Dunbar, 7 P. F. Smith, 274. After remarking upon the particular character and danger of the establishment, the subject matter of the complaint in that case, which was a steam planing mill, which had long been established in the neighborhood, had been burned down, and the injunction asked for was [Rudder v. Koopman & Gerdes.] against its erection, and which the majority of the court thought was not within the rule, he proceeds: These observations give no just grounds to draw the inference that a powder-magazine, or depot of nitro-glycerine, or other like explosive materials, might not possibly be enjoined even if not prohibited, as they usually are, by ordinance or law. It is not on the ground alone of their liability to fire, primarily or even secondarily, that they may possibly be dealt with as nuisances, but on account of their liability to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury, which, being instantaneous, extends alike to property and persons within its reach. The destructiveness of these agents results from the irrepressible gases once set in motion, infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burning building, let it burn ever so fiercely, in most cases have a chance of escaping injury. Not so, when explosive forces instantly prostrate everything near them, as in the instances of powder, nitroglycerine and other chemicals of an explosive or instantly inflammable nature.' This reason is so cogent that nothing could be added which would increase its force." In Cook v. Anderson, 85 Ala. 99, the facts were that the party sought to be charged occupied a store adjoining the one injured, in the city of Montgomery, as a builders' material supply store, having in stock in the basement of the store, paints, oils, varnishes, lime and some cotton. There were no such explosives as gunpowder or dynamite. Without any fault or agency of the owner, fire originated in the basement, and was communicated to the adjoining building of the party claiming damages for the injury. This court, by Justice CLOPTON, said: "The contention of defendants [who were pleading recoupment] can be founded only on the ground, that keeping inflammable materials for the purpose of trade and traffic, in the basement of a store in a city is a private nuisance per se, which makes the plaintiff liable for actual injury resulting therefrom, without regard to negligence on his part. Keeping explosive substances in large quantities, in the vicinity of dwelling houses or places of business, is ordinarily regarded a nuisance, whether so or not being dependent upon the [Rudder v. Koopman & Gerdes.] locality, the quantity, and the surrounding circumstances. But negligence, or want of ordinary care, in the manner of keeping, or in keeping large quantities, is requisite to impose a liability to answer in damages occasioned by an accidental explosion or fire, which it is incumbent on the party affirming to prove.-Wood's Law Nuis., § 140. The admitted facts do not tend to show anything in the manner of keeping the materials mentioned, or in the way they were stored, or in their use, or in the conduct of the plaintiff concerning them, from which negligence can be inferred; and the mere fact of keeping such materials in store for trade is not sufficient negligence. The rule governs which exonerates a party from liability when engaged in a lawful business, and free from negligence." The principle here declared is, that it is not wrong to keep in store in a city inflammable materials such as paints, oils, varnishes, lime, cotton and articles of that character, for the purpose of business or use, and the mere fact of so keeping them does not give rise to an action for a nuisance, though in case of fire, they are ignited and burned, and their burning contributed to the destruction of the adjacent property of another. In order to hold the keeper liable, in such a case, it must be alleged and shown that he was guilty of some negligence or wrong in the manner of keeping the materials; that is to say, in the way that he stored, kept or handled them. This is, we think, undoubtedly, a correct principle, in reference to keeping materials of that character. Otherwise, every paint or drug store in a town or city would be a nuisance. But the court, in that case, never intended to declare that the keeping of large quantities of explosive substances, such as gunpowder, dynamite, nitro-glycerine and the like-substances which upon the application of the smallest spark, or a slight concussion, will explode with a force beyond any human agency to control, or power to resist-in a house or place, in a thickly settled portion of a town or city, where there were, in proximity, many buildings and persons, and where the substances were liable to explode and do injury to such persons or property, is not of itself a wrong, giving rise to an action in favor of one injured in his person or property by reason of an explosion of the substances, whether there was any special negligence [Rudder v. Koopman & Gerdes.] in the particular manner of keeping, protecting or handling the explosives or not. Indeed, the language of Judge CLOPTON, in his references to explosives of this kind, clearly implies that the keeping of them, in large quantities, at such a place, and under such circumstances, as above stated, with resultant injury to another from their explosion, is of itself actionable without regard to any other special negligence on the part of the keeper. His language is plain. He says that whether or not the keeping of such explosives in the vicinity of dwelling houses or places of business is a nuisance, depends upon the locality, the quantity and the surrounding circumstances. "But," he says, "the negligence, or want of ordinary care, in the manner of keeping, or in keeping large quantities, is requisite to impose a liability, etc. From this two rules are deducible: one is, that if large quantities are kept at such a place, and under such surrounding circumstances as to render it dangerous to the people or property in the neighborhood by reason of its liability to explode and do injury; in other words, to create a nuisance, then there was wrong, or negligence (if we may call it negligence) which gives a right of action to one injured. The other is, that if the explosives were not kept in such quantities, and at such a place and under such surrounding circumstances, as to bring the case within that rule, then there must be shown some special negligence in the manner of keeping them. The subsequent case of Collins v. A. G. S. R. R. Co., 104 Ala. 390, drew its principles from Cook v. Anderson, supra, and upon the facts of the case, rightly resolved that the powder was not kept at such a place and under such surrounding circumstances as constituted the mere keeping of it wrong and actionable as a nuisance; and there being no special negligence in the manner of keeping it, the case was not within either of the rules to which we have adverted. In that case, the defendant as a common carrier, had stored in its general freight warehouse, in Birmingham, a large quantity of gunpowder, awaiting delivery to consignee. The powder, transported by defendant, reached Birmingham, and was stored in the warehouse on July 29th, and on the night of the 30th was exploded by some unknown means, destroying freight consigned to the plaintiff and [Rudder v. Koopman & Gerdes.] stored in the same warehouse. Notice of the arrival of the powder was given the consignee on the morning of the day of the explosion. The building was constructed of corrugated iron and covered with tin, and the company kept a competent watchman there at night for the purpose of guarding the depot. There was no evidence of negligence on the part of defendant. In disposing of the question of defendant's liability for keeping the powder the court, by Justice HARALSON, said: "The fact that the defendant had in its warehouse, at the time, 1,200 lbs. of powder, is not, of itself, such evidence of negligence as entitles the plaintiff to recover. While it may be said that the keeping of large quantities of explosive material in a building in a populous town or city may be a nuisance, yet, the fact whether it is such or not, must depend on the locality, quantity of the material stored and the circumstances. Negligence in keeping it, [emphasis ours], or in the manner of its keeping, is requisite to impose a liability to answer in damages for injuries caused by an accidental explosion or fire, which it is incumbent on the party affirming to prove." Citing Cook v. Anderson, supra. The opinion then proceeds: "The defendant was a common carrier of such and all other commercial materials. It is not shown that there was any city ordinance against storing the powder in its depot for the purpose of delivering it to its consignee. It arrived on the 29th, the day before the explosion, and the consignee was duly notified, on the morning of the 30th of July, the day of the explosion, of its arrival; and instead of being negligent, the evidence shows the defendant was very careful to preserve it against accident in a house built of iron and covered with tin and carefully guarded." And it was held that defendant was not liable. It is plain the court, in delivering this opinion, intended to be guided by the principles expressed in Cook v. Anderson, supra, from which its language is, in part, substantially, copied. The same distinction in the matter of negligence in the fact of keeping, and in the manner of keeping powder, was preserved. This is rendered more apparent by the pertinent argument following, going to show absence of wrong in the fact of keeping, by reason of the circumstance that the powder was really, in transit to the consignee, in the possession of the defendant, as a common |