(dissenting):
The defendant was owner and proprietor of a gun factory on a plot forming part of a large block bounded by Bergen street, St. Mark’s, Utica and Schenectady avenues, in Brooklyn. The plot- was about eighty-eight feet wide and ran through from Bergen street to St. Mark’s avenue. The factory was on the lots fronting on Bergen street, and was inclosed by a wooden fence. Workmen employed by the defendant in the factory were accustomed to throw refuse, rubbish, and ashes from the factory fire room onto the lots outside of the fence, to be subsequently carted away. The block was mostly open ground and was criss-crossed by paths, one of which ran close to the rubbish heap. . Children were accustomed to use the open block as a playground.
In September, 1900, the plaintiff, a boy fourteen years of age, while standing on the sidewalk of St. Mark’s avenue, saw two of his playfellows carrying a black chunk of material which resembled asphalt, about a foot long, in which were embedded small pieces of brass and copper. It was proven to consist of old gun primers and materials of a highly explosive character. The three boys started to extract the metal from the substance, in order to sell it. The plaintiff had a portion of it which he was breaking with his hands, when one of the other boys struck another portion with a stone and that piece exploded and injured the plaintiff. There was. evidence justifying the inference that the material came from the defendant’s open lots and was placed there by the defendant’s servants. The plaintiff recovered a judgment from which the defendant appeals.
The right of the defendant to place material upon his own land for the purpose of having it removed, can hardly be questioned. There was no allegation in the complaint that the defendant had erected or maintained a nuisance, and the trial was not had upon that theory. The complaint alleged that “ said injuries were caused by the carelessness and negligence of the said defendant, his agents, servants or employees, in placing the said unsafe, dangerous and *447explosive articles on the said vacant lots, and allowing the same to remain there.” Hence the question of a nuisance is not in the case, and we must deal with it simply as an action based on the defendant’s negligence.
As expressed in 1ns brief, the contention of the plaintiff is that “the defendant having placed gunpowder in a lot occupied by children and used by the public was liable for the natural consequences of an explosion and injury thereby.”
The defendant contends that the plaintiff, being a mere licensee, the defendant owed him no duty other than to refrain from doing him a willful injury; and, second, that he is liable only for the natural and probable consequences of a wrongful act or omission. The first of these propositions finds support in Cusick v. Adams, (115 N. Y. 55), where it was said (p. 59): “ The principle is now well settled by repeated adjudications in this country and in England, that where a person comes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premise's, the owner is not liable for negligence ; for such person has taken all the risk upon himself.. The theory of liability in negligence cases is the violation of some legal duty, to exercise care.”
In Beck v. Carter (68 N. Y. 283), where the plaintiff fell into an excavation adjacent to a highway, the court said that the owner of land is not bound by the common law to fence it or in any way to mark the boundaries of ’his possession ; he may leave it open, and a person entering thereon without permission is a trespasser ; that it is no excuse that the entry-was made innocently and by mistake, and that the owner of land may make an excavation on his own premises and is not bound to fence it for the protection of persons not lawfully on the land.
In Larmore v. Crown Point Iron Co. (101 N. Y. 391, 394) the court said: “ The precise question is whether a person who goes upon the land of another without invitation to secure employment from the owner of the land, is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises not obviously dangerous, which he passes in the course of his journey if he can show that the owner might *448have ascertained the defect by the exercise of reasonable care. We know óf no case which goes to this extent. * * * The .owner of land in general may use it as he pleases,, and leave it in Such condition as he pleases. But he cannot without giving any warning, place thereon spring guns or dangerous traps which may subject a person innocently going on the premises, though without actual permission or license, to injury, without liability.”
An unfenced excavation intentionally created by an owner differs only in degree of danger from the piling up of the material here in question. If left untouched it was not dangerous. If the jury were justified in finding that it was placed on the open lot by the defendant’s workmen, the defendant did not exceed his rights in allowing it to be placed there.
The existence of the paths ovér the block, even if they crossed the defendant’s lots, might be interpreted as an invitation to the plaintiff to use them for the purpose of passage. It can hardly be said that it was an invitation to him or to his playmates to come upon the plaintiff’s land outside of the paths and remove property of the plaintiff which, though' thrown upon a rubbish heap for the purpose of removal, had a value, even though nominal. The defendant could have removed the material to his factory or else, where, or sold it. The theory of the plaintiff is that this material was the property of the defendant.
The second proposition of the defendant suggests the remoteness of the plaintiff’s injury from any act of the defendant. It is not a case where the plaintiff, while passing over the defendant’s open lot, was injured by an explosion to which no act of his contributed, or even where he picked up from the lot a piece of dangerous material placed there by the defendant, but it is a case where other boys, without permission, took property of the defendant from his premises and carried it to the public highway, and there did some act which resulted in an explosion. In other words, the explosion followed and resulted from the intervention of a wrongdoer. The explosion would not have happened but for such wrongdoing of third persons. For is it a case where the explosion was caused by any act of the plaintiff in direct connection with the material, unless it may be said that all of the boys were engaged in a common enterprise, whereby we might be led to some curious results, but one *449occasioned by the act of one of the other boys who had taken the material to the sidewalk and was hammering it. If the defendant is liable under such circumstances, why would he not be liable if a person had taken the material into another city or State, and upon the highway there caused an explosion to the injury of a passer-by ? It would seem that this reduotio ad dbsurdum is the logical result of the plaintiff’s theory.
In Jew v. Straus (122 N. Y. 293, 301, 302) it was said : “ The law requires that the injury must proceed so directly from the wrongful act that according to common experience and the usual course of events it might, under the particular circumstances, have reasonably been expected. (Citing cases.) To justify the recovery of damages they must be the natural and proximate consequence of the act complained of.”
When doubt exists as to whether the damages are proximate, or speculative and remote, the question is properly one for the jury, but where the presence of an intervening responsible agency is.to be inferred from the undisputed facts, it is not error to withhold the case from the jury. (Hoag v. L. S. & M. S. R. R. Co., 85 Penn. St. 293.)
Beetz v. City of Brooklyn (10 App. Div. 382) was an action against the city for damages for personal injuries. The city issued a permit to certain builders to use a portion of its public streets upon which to place building materials to be used upon a public building, then in course of construction. Under this* permit, the builders placed upon the sidewalk some barrels of quicklime, which remained there for two weeks. Considerable quantities of the lime escaped upon the sidewalk through breaks in the barrels. The plaintiff, a boy seven years of age, and some other boys, were playing on the sidewalk and took some of the lime to build a playhouse on an adjoining lot. In doing this they poured water on the lime, which exploded and destroyed the plaintiff’s eyesight. This court, Mr. Justice Hatch writing, unanimously held that the placing of the lime on the sidewalk was not the proximate cause of the accident, and that in order that an unlawful act may be held to be the proximate cause of an - injury, the injury must result so directly from such act that,, according to common experience and the usual *450course of events, the particular injury under the circumstances might reasonably have been expected. The language of the opinion is peculiarly applicable to the present situation (pp. 384, 385): “ There is nothing which appears in the case having a tendency to establish that the lime, if left alone in the street as it was placed, would have inflicted injury upon any person, or that it would be likely to be so blown about as to inflict damage. Could the defendant, in l’easonable contemplation, have supposed that children would carry this lime from the street to this vacant lot and there attempt to make use of it in the manner described? We think to ask the question is to answer it. The lime was harmless as it lay- upon the street; it was only made dangerous by the active intervention of two other agencies, the boy who carried it and its contact with water.” We also held that the question of proximate cause is usm ally one of fact for the jury, but where the case presents a. clear case the question is to be disposed of by the court, and affirmed' a judgment dismissing the complaint on the plaintiff’s opening.
The Beetz case was cited and approved by this court in Saverio-Cella v. Brooklyn Union R. R. Co. (55 App. Div. 98,101), where, Mr. Justice Jenks writing, we said: “.The law requires that the injury must so directly result, from the wrongful act ‘ that according to common experience and the usual course of events it might, under the particular circumstances, have reasonably been expected.’ (Citing Jex v. Straus, supra) If the result was not within the ken of reasonable prudence and foresight, then proximate causé is not established. (Citing the Beetz case.) And where the facts present a clear case the question becomes one of law.”
The case of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301), familiarly known as the turntable case, is authority upon the present-appeal. There the defendant had erected a turntable upon its own premises, which were, unfenced. For a number of years the public had been accustomed to cross the premises from one street to another, and the paths were within fifteen or twenty feét of the turntable. The plaintiff, a child six years of age, in company with other boys, was playing with the turntable and turning it around, when the plaintiff’s leg was caught and he was injured. It was held that thé facts did' not authorize the assumption that the public was invited to come upon the ground, and while there was an *451implied license permitting the crossing, one availing himself of it was there by sufferance only, and while defendant owed him a duty not to injure him, either intentionally or by a failure to exercise reasonable care, it owed him no duty of active vigilance, that the facts did not show a failure to exercise such reasonable care as amounted to a violation of any duty which the defendant owed the plaintiff, that the defendant did not owe a duty to the public to keep the turntable fastened when not in use, and that a submission to the jury was error. The court said (p. 312): “ In the case of a defendant engaged upon his own land in simply doing that which it is necessary to do in order that he may carry on his business properly and who fails to exercise the highest vigilance in order to protect from possible harm children who may stray upon his land for no other purpose than recreation, we think there is an absence of any fact upon which a jury ought to be permitted to find negligence.”
In the Walsh case the defendant owned all the premises on which the paths were used and worn. In the present case there is no positivo evidence that the paths crossed the plot owned by the defendant outside of the factory fence.
Wittleder v. Citizens' El. Ill. Co. (47 App. Div. 410) differs materially from the case at bar. There the plaintiff went to play upon a stairway which the elevated railroad company had built for the use of its patrons, that is, the public generally, and while playing there extended his hands and touched or grasped an electric wire which the defendant had suspended upon the elevated railroad structure and negligently allowed to become out of order, whereby the plaintiff was injured. He was not removing or attempting to remove the wire. We intimated that if the action had been against the railroad company we might, under Walsh v. Fitchburg R. R. Co. (supra), have held the plaintiff to be a trespasser upon the property of the company, and that there could have been no recovery against it for an accident occurring thereon.
Thomas v. Winchester (6 N. Y. 397) is not authority upon the present question. There the defendant, a manufacturer, put up and sold to dealers poison in falsely labeled bottles. A person who purchased the same from a druggist was accidentally poisoned by a misuse of the contents, owing to the false label. The court said: *452“Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market, and the defendant is justly responsible for the probable consequences of the act.” How can it be said that the defendant in the case at bar could reasonably have expected the unusual and extraordinary series of acts which resulted in the plaintiff’s injury to follow the placing upon his vacant lot, which he had not invited the plaintiff to use, an article which he had not invited or authorized the plaintiff to remove ?
I think that there was error in the charge prejudicial to the defendant when the court said : “ There is not any question that an explosive of this kind would injure, because it did injure these boys.” The defendant excepted and the court substantially repeated the instruction. This took away from the jury all consideration, of the character of the substance about which there was conflicting evidence and prevented their inquiry as to its real character, whether it was inherently explosive, so that it would necessarily injure without reference to the method in which it was handled.
Upon all the facts, I am of opinion that the defendant owed the plaintiff no duty other than to refrain from doing him a willful injury, and that the placing of the article upon his own lots adjacent to his factory was not the proximate cause of the plaintiff’s injury; that the exceptions to the refusal to dismiss the complaint and to the charge were well taken, and that the judgment should be reversed and a new trial granted.
Judgment and order affirmed, with costs.