CLARK, C.J., dissenting, arguendo. HOKE, J., concurring in the dissenting opinion. After stating the facts: Taking the averments in the complaint to be true, as admitted by the demurrer, two questions are presented:
1. Was there a breach of duty to the plaintiff on the part of the defendants
2. Was it the proximate cause of the injury?
It is said that the demurrer admits negligence. The demurrer admits the facts set out, with such inferences to be drawn from them as are most favorable to plaintiff. The law prescribes the measure of duty which defendants owe to plaintiff upon the facts and the inferences to be drawn from them. A defendant cannot by demurring change the law. Stripped of immaterial verbiage, the plaintiff says defendants were engaged in constructing a railroad between the points named; they permitted about 1,600 pounds of dynamite to be kept in a small wooden (145) building along the line of their track and near one of the public roads in Craven County, about 1 mile from the city of New Bern, without any notice or warning to the public that the building contained dynamite. The building was in a public place, where trains were passing. The house appeared to be an old abandoned shanty. Plaintiff was an employee of the Western Union Telegraph Company, was engaged in constructing a telegraph line, and was living in a camp near the shanty in which the dynamite was stored, of which he had no knowledge. On the morning of 14 May, 1907, the plaintiff, with a companion, while engaged in shooting at a target, shot at a knot-hole in the weatherboarding of the shanty, causing a terrific explosion, whereby he was injured, etc. *Page 108
Actionable negligence consists in a breach of duty to plaintiff. A public nuisance is actionable only when a private injury is sustained by plaintiff. "In order to sustain an action, the plaintiff must state and prove facts sufficient to show what the duty is, and that the defendant owes it to him." Shepherd, J., in Emry v. Nav. Co., 111 N.C. 94. "It has been often pointed out that a person cannot be held liable for negligence unless he owed some duty to the plaintiff and that duty was neglected."Lane v. Cox, 1 Q. B. D., L. R. (1897), 415. "The duty itself arises out of the various relations of life and varying obligations under different circumstances. In one case the duty is high and imperative; in another it is of imperfect obligation." In every case wherein negligence causing injury is alleged, it becomes necessary to inquire what relation plaintiff bears to defendant. It is impossible to ascertain whether the defendants owe any, and if so, what, duty to plaintiff, until the legal relation existing between them in respect to the cause and occasion of the damage is settled. To say that the storing of the dynamite in the place and manner alleged in the complaint is a public (146) nuisance does not in any degree affect the question or aid us in its settlement. For maintaining a public nuisance the defendants are liable to indictment. The citizen can sue only when he sustains special damage — different in kind from the public. It is elementary that plaintiff had no cause of action against defendants for placing the dynamite in the shanty. He must establish some relation between defendants and himself from which a duty to him is imposed upon defendants. "The expression `duty' properly imports a determinate person to whom the obligation is owing, as well as the one who owes the obligation. There must be two determinate parties before the relationship of obligor and obligee of a duty can exist." 1 Street Foundations Legal Liab., 94. The duty grows out of the relationship. What relationship existed between plaintiff and defendants at the time of and in regard to the conditions out of which the damage was sustained? Plaintiff had a right to pass along the public highway and to use the public highway as any other citizen. Defendants owed him the duty not to obstruct the highway or to place dangerous explosives so near thereto as to endanger his life or person. For any injury caused by a breach of this duty defendants were liable. Plaintiff had no right, while passing along the highway, to go upon defendants' premises or to shoot at or into their houses. He was not in the employment of defendants, nor does he pretend that he occupied any relation to defendants making him a licensee, either express or implied. lie says that he "was engaged in shooting at a target." The case then comes to this: Defendants have stored on their right of way, in the shanty, to be used in constructing a railroad, the quantity of dynamite named. The plaintiff commits a trespass upon the property by *Page 109 shooting into the house, through a knot-hole, not knowing the dynamite was stored therein. Conceding that storing the dynamite in the shanty without giving notice constituted a public nuisance, what duty did dedefendants [defendants] owe plaintiff, a trespasser upon their premises? It will be observed that he was not attempting to abate the nuisance. (147) The defendants were engaged in constructing the railroad, hence no question in regard to the right of the public to go upon the right of way is presented. It does not very clearly appear whether, when he shot at the knot-hole, plaintiff was on the public highway or on the right of way. It is immaterial where he was standing. Assuming that he stood in the highway, it is manifest that in shooting at the knot-hole he was as essentially a trespasser as if he had gone on the right of way or premises and struck the shanty with his pistol. It is clear that, in respect to the cause of the explosion, plaintiff was a trespasser. In 1 Street Foundations of Legal Liab., 155, it is said: "When mischief happens to a trespasser by reason of the defective or dangerous condition of the premises upon which lie trespasses, he is very properly held to assume the risk, and no recovery can be had against the keeper of those premises. As it is commonly and somewhat more artificially put, the implied duty to prevent harm from unsafe premises does not exist in favor of a trespasser."Zoebisch v. Tarbell, 92 Mass. 385. The view we find most favorable to plaintiff is thus stated: "The preferable view is believed to be that a party's liability to trespassers depends upon the former 5 contemplation of the likelihood of their presence on the premises and the probability of injury from contact with conditions existing thereon. While, as a rule, a party will not be deemed to anticipate the commission of a willful wrong, yet when, under the circumstances a technical trespass may reasonably be anticipated, the owner of premises will be liable for a failure to take reasonable precautions to prevent injuries to the trespasser." 21 A. E. Ene., 473. Adopting this standard of duty, we are unable to perceive how the plaintiff can maintain his action. There is no suggestion that plaintiff or any other person was in the habit of shooting at the house in which the dynamite was stored, or that it was so situated, with reference to the camp in which he lived, that defendants' servants knew or had cause to (148) believe that he would "engage in shooting at a target" near the house. To impose upon defendants the duty of prevision to the extent necessary to maintain this action would be burdensome to the owners of property. To say that defendants are required to anticipate, not only that some one would engage in shooting at a target there, which is about as far removed from a knot-hole as substance is from shadow, but that he would find a knot-hole in a shanty unknown, so far as it appears, to defendants; that not a technical, but an actual and injurious trespass *Page 110 would be successfully committed; that a skilled marksman would select this particular knot-hole and shoot into it, is, to put it mildly, a severe strain upon the duty of prevision. It will be observed that the breach of duty, even to the public passing along the highway or to persons rightfully on the premises, is not in storing the dynamite, but in failing to give warning or to put some notice on the house showing that dynamite was stored in it. The plaintiff invokes the maxim, Sic utere, etc. Why may not the defendants successfully invoke the same maxim against him? Why may they not say to him, "The use which we made of our property would not have injured you if you had not wrongfully used your pistol, to the injury of our property"? The defendants were doing what they had a legal right to do, provided they gave notice to all persons who were in the exercise of their rights; or, if trespassers, they could not reasonably have anticipated the trespass. If I leave an obstruction to passage through my premises, I am not required, in the absence of any condition putting me upon guard, to anticipate that some one will come along, commit a willful trespass upon them, and be injured by disturbing the conditions which I have created. It is but reasonable and just, if I know or have reason to think that a trespass will be committed, that I am not permitted to leave a death trap or a spring gun set upon my premises without giving notice thereof. If I have dug a pit on my premises, (149) and know or have reason to think that a trespasser, ignorant of its existence, is going towards it, I may not, either by the code of sound morality or law, stand by and permit him to go to his death and acquit myself of liability by saying that he was a trespasser. The distinction between such a case and the one developed by the complaint is obvious. Defendants had no reason to suppose that some person would pass along the highway and shoot, not only at the house, but select a knot-hole, of which they had no knowledge, as a target, and put the ball through the hole, causing the explosion. Hence they owed no duty to plaintiff to anticipate such an improbable and unusual combination of conditions. The law is made by and for practical men for the practical affairs of everyday life. Judges must, in its interpretation and application, have regard to its origin and function. While enforcing the wise and just maxim requiring every one to so use his property as not to injure his neighbor, harsh rules and heavy burdens must not be imposed upon the use of property for the benefit of trespassers and wrongdoers. To do so would render the fruits of honest industry and economy not only in secure, but make these virtues the occasion for punishment. If men wish to go along the public highway shooting at targets, either real or imaginary, on the premises of those owing or using property near by, they must abide the consequences, however regrettable. The plaintiff, instead of seeking to mulct the defendants in damages, should congratulate *Page 111 himself that his folly has not resulted in his own and the death of his companion and of other innocent persons, and that he is not sued for the injury done defendants' property. It is suggested that the case may be likened to those wherein the owner sets a spring gun or trap on his premises for the purpose of injuring apprehended trespassers. The liability there grows out of the fact that the gun or trap is set for the purpose of injuring trespassers. The owner foresees that they will come upon his premises, and intends that they shall be injured. (150) As he could not, for the purpose of preventing a trespass, shoot or wound the trespasser with a gun in his hand, he cannot accomplish the same end by setting the gun for that purpose. The distinction between those cases and the one before us is manifest.
It is a mistake to say that the defendants are driven to the defense of contributory negligence. The plaintiff fails to make a case of actionable negligence, because, in respect to the conditions existing and the manner in which he sustained damage, he shows no breach of a legal duty to him. It is by no means clear that the dynamite stored as described in the complaint was, in the ordinary acceptation of the term, a public nuisance. While we do not conceive that it is material to the decision of this appeal, we note an interesting discussion upon the question in Kleebour v. WestFuse, etc., Co., 138 Cal. 497 (94 Am. St., 62). In this case defendant had stored, in the prosecution of its business, a quantity of gunpowder in a magazine near dwelling-houses. A Chinaman, who had been in the employment of defendant company, killed another Chinaman and fled into the magazine. lie piled a number of metal cans, in which gunpowder was kept, in the door of the magazine, and announced that, if any officer attempted to arrest or take him, he would set fire to the powder. After some time spent in endeavoring to persuade him to come out of the magazine, an attempt was made to take him, when he set fire to and exploded the powder, destroying the factory, killing some of the officers and injuring the dwelling-house of plaintiff. The trial court held that the defendant company was guilty of maintaining a nuisance per se, and "that it was an insurer against all damage from whatever cause." Defendant appealed from a judgment against it. The appeal was heard by a "department" of the Supreme Court and affirmed. 69 Pac. Rep., 246.) It was thereupon, in accordance with the system of hearing appeals which prevailed in Califormina [California], heard "in Banc" by the full bench and the judgment reversed. The opinion by Van (151)Dyke, J., is learned and exhaustive in the discussion of the authorities. He concludes: "The damage in question resulted from a cause entirely beyond its control and without any carelessness on its part whatever, and, under the more recent and better line of authorities, it is not responsible." Among other decided cases cited and commented upon *Page 112 by the learned judge is Tuckachinsky v. R. R., 199 Pa., 515, in which it appeared that the defendant had stored dynamite and black powder in a wooden building, 14 feet square and 12 feet high, in an open space near the shaft of its colliery. An explosion was caused by lightning. The plaintiff, standing in the door of her father's house, was injured. The court instructed the jury to find for the defendant. Upon appeal it was said: "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." The judgment was affirmed. Kenneyv. Koofman, 116 Ala. 310 (67 Am. St., 119.) These cases are not cited to establish the proposition that defendant would not be liable to a person using the highway or living near-by the place at which the dynamite was stored, if injured by its explosion. Nor do we express any opinion in regard to the liability of defendants for damage sustained by one who had no connection with the explosion. In many of the cases cited in support of plaintiff's right to recover it will be noted that the injury "resulted from the nuisance," which we take to mean was the proximate cause of the injury. This is manifestly true, but by no means decisive of this case. In Woolf v. Chalker, 31 Conn. 131, the plaintiff was not a trespasser; the liability is made to rest upon the same principle which holds the owner of premises liable for injuries inflicted by spring guns. Butler, J., says: "A dog is an instrument for protection; a ferocious one is a dangerous instrument, and the keeping him on the premises to protect them against trespassers is unlawful, upon (152) the same principle that setting spring guns or concealed spears or placing poisonous food is unlawful." It is not practicable to discuss this case at length, but an examination of it will discover that it is by no means decisive of the question before us.
In Allison p. R. R., 64 N.C. 382, the slave was placed by agents of the defendant company to sleep in a room in which powder was stored under the bed. It was exploded and the slave was killed. The difference between the cases is obvious and needs no discussion. In Haynes v. Gas Co.,114 N.C. 203, defendant permitted a live wire to be on or near the sidewalk along a public street in the city of Raleigh. Plaintiff's intestate, a boy about 10 years old, walking along the street, took hold of it and was killed. Burwell, J., writing the opinion, thus puts the case: "Plaintiff says to defendant: `The wire you put in the street killed my son while passing along the highway, as he had a right to do. If you are not in defendant show it and escape responsibility.'" This language clearly points out the distinction between the cases. In Powers v. Harlow, 51 Am.Rep., 160, the shed was not securely fastened, and the child of one of defendant's lessees got into it and exploded the cartridges. Defendant was held liable. The child, in regard to whom an *Page 113 exception is always recognized, as in the "turntable cases," was rightfully on the premises; its father was lessee. Conceding, however, that the defendant was guilty of negligence in storing the dynamite, as alleged in the complaint, and eliminating all question of contributory negligence, it is manifest that, upon the facts set forth, such negligence was not the proximate cause of the damage sustained by him. We know, without controversy, that the dynamite stored as described in the complaint would not have been exploded unless brought into contact with either an electric current or some substance adequate to that end; that, as a matter of fact, plaintiff by his act caused the explosion; that no explosion at that time or in that manner would have occurred if plaintiff had not by his conduct caused it; that in doing so he (153) was not in the discharge of any duty to defendant or to any employee of defendant, or exercising any legal right, either express or implied; that, on the contrary, he was committing a trespass, a misdemeanor (Revisal, sec. 3673), in shooting at "an uninhabited house." Why, then, is not his act, in legal contemplation, the proximate cause of the damage? It is the last cause in order of time — the efficient cause. Our investigation does not disclose any case in which a trespasser whose conduct actively, affirmatively, brought about the condition which caused the damage has sued therefor. Many cases discussing and illustrating the doctrine of proximate cause as an essential element in actionable negligence are to be found wherein an innocent person has sustained injury by reason of the intervention of strangers with conditions for which the defendant was responsible. In these cases the question which has sometimes given concern to the courts is whether such interference was so related to the conduct of defendant and the injury sustained by plaintiff as to break the connection, or, as is sometimes said, "insulate" the original negligence. This case, so far as we can discover, is of first impression. In a recently reported case decided in the Court of Appeals in England the doctrine is discussed and clearly stated. The servants of a railway company left trucks or vans in a condition which enabled some boys, trespassers, to release or turn them loose. They ran down the inclined track and injured a person passing along the highway. The jury found that the trucks were in a safe condition, unless interfered with; that the accident would not have happened if the van had not been interfered with; that the interference was the act of trespassers, who acted negligently; that the danger of interference was known to and could have been guarded against by defendant, etc. Williams, L. J., after discussing the question of defendant's negligence, concludes: "Even assuming any neglect of duty here by the railway company, what one has to ask oneself is this, Was the neglect by the (154) railway company of precautions the effective cause of this accident? *Page 114 I confess I think, on this evidence, such neglect was not the effective cause of this accident, and, as Lord Esher says, if it it was not, that means that the defendants are not liable." Stirling, L. J., says: "The jury have found that the van was in a safe position as and where it was left by the defendant's servants, unless interfered with afterwards, and that the accident would not have happened if the van had not been interfered with, and that the interference was the act of trespassers, who acted negligently. Then what really happened was that some boys got into or on the van and undid the brake and couplings, and that this led to the accident." McDowell v. R. R., L. R. 2 (K. B.), (1903), 331.
We had occasion to consider the doctrine of proximate cause as an element in actionable negligence involving the intervention of an intelligent independent agent in Horton v. Tel. Co., 146 N.C. 429. In that case injury resulted from the conduct of an intervening agent. It was held that her administrator could not recover. We do not care to review the authorities cited in that opinion. Our investigation has discovered several well considered cases on this much discussed doctrine. Tel. Co.v. McCullough, 118 Ky. 182; McGohan v. Gas Co., 140 Ind. 335 (49 Am. St., 199). The doctrine is well stated in Wright v. R. R.,27 Ill. App. 200. Defendant, in violation of the town ordinance, stored in a frame building a large quantity of crude petroleum, gasoline, etc., which was dangerous to plaintiff's building. Defendant's building took fire and the oil exploded, destroying plaintiff's building. The cause of the fire was not stated. The judge rendered judgment of nonsuit. The question was whether keeping the oil in the building in violation of the ordinance was the proximate cause of the injury. The Court said: "The mere keeping the oil in its building, although prohibited by (155) the ordinance, gives no right of action to appellants. It is still a question of fact whether the damage alleged was the proximate consequence of such keeping." Quoting the language used by the Court in R. R. v. Standford, 12 Kan. 254, it is said: "Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first and every intermediate result, is to be considered in law as the proximate result of the first wrong cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be deemed too remote to constitute the basis of the cause of action." Ramsbottom v. R. R., 138 N.C. 38. That one of the defendants maintained a public nuisance on its premises does *Page 115 not make it liable to plaintiff. To do so, the maintenance of the nuisance must be the proximate cause of his injury. This principle is illustrated in many cases wherein actions are brought for violation of town ordinances. As said in Brown v. Seigel-Cooper Co., 90 111. App., 49, "The mere failure to obey a town ordinance is not of itself sufficient to entitle the plaintiff to recover for personal injuries. It must appear that such failure was the proximate cause of, or at least contributed to, the injury." The law is thus stated and supported by abundant authority in a note toSluder v. Transit Co., 189 Mo., 107; 5 L.R.A. (N.S.), 186: "Another rule that admits of no exception is that the violation of a municipal railroad ordinance imposes no liability upon the offender to one who suffers injury, unless such violation is the proximate cause of the injury." (Page 209.) We announced the same familiar doctrine inLeathers v. Tobacco Co., 144 N.C. 330, reported in 10 L.R.A. (N.S.), with exhaustive note. So, conceding that the dynamite (156) as stored was a public nuisance, the plaintiff must, in order to recover, show that, without any independent intervening cause, it resulted in damage to him. Care must be taken to note that we are not considering the question of contributory negligence. Proximate cause pertains to the plaintiff's cause of action; contributory, to the defendants' claim to be exonerated from their negligence, and it does not arise until plaintiff has made out his case, damnum et injuria. It is, therefore, not only proper but necessary to decide the question upon the demurrer. If the facts stated in the complaint in respect to the manner in which the injury was sustained are capable of more than one reasonable inference, the question should be submitted to the jury. If, as said in Leathers v. Tobacco Co., supra, "there be any dispute regarding the manner in which the injury was sustained, or if upon the conceded facts more than one inference may be fairly drawn, the question should be left to the jury; yet it is equally well settled that where there is no dispute as to the facts, and such facts are not capable of more than one inference, it is the duty of the judge to instruct the jury, as matter of law, whether the injury was the proximate cause of the negligence of the defendant." Ramsbottom v. R. R., supra; Harton v. Tel. Co., supra. We entertain no doubt that, considered from either point of view, the demurrer should have been sustained. In overruling it there was
Error.