I cannot agree to the conclusion reached by Justice Houghton. The plaintiff was injured while an invited spectator of these fireworks exhibited by the defendant. If she must prove specific negligence in the firing of the specific rocket, her case is, of course, hopeless, and she is without a remedy for the severe injury which she lias suffered. As far as appears, only this rocket fell among a crowd of spectators. All other' rockets were properly guided out of harm’s way. If this rocket had been properly directed it would not have fallen where it did unless through the interference of some unusual force. There is no evidence that the wind was blowing in a way which would have carried the rocket where it fell, and that there was no such wind 'would seem to be evidenced by the fact that no other rockets fell there. The fact that the rocket fell in that particular place is to my'mind prima, facie evidence that it was so directed by the agency which fired it, and such direction was sufficient evidence of negligence, at least, to put the defendant to proof of care in the discharge of the rocket. In Colvin v. Peabody (155 Mass. 104) a dealer in fireworks was sued for an injury caused by a fragment of a bomb which struck the plaintiff. Allen, J., in writing for the court, said: “ There was sufficient evidence for the jury of the negligence of fhe defendant’s agents. The evidence tended to show that the mortars were discharged in too small an enclosure for perpendicular firing to be safe; that insufficient time was taken for preparation ; that the firing was done in somewhat of a hurry; that *18due care in firing bombs requires that the mortars should be so aimed that the bombs-will not fall upon the people, and that the bomb or shell which hit the plaintiff fell at a place far from where it was intended to fall or safe for it to fall. The defendant now contends that there was no evidence of the negligent firing off of a particular mortar from which the plaintiff received her injury. There was, however, nothing to show that anybody else was discharging; mortars near by, and the jury might well find that she was hurt by a bomb or fragment of a shell carelessly fired from a mortar by the defendant’s agents, and this was enough, without identifying the particular mortar, or the particular discharge, or tracing the bomb in its; flight.” While all of the elements of negligence there enumerated are not found, in the case at bar, the fact that the bomb fell at a place far from where it was intended to fall, or safe for it to fall, is-part of the evidence which was held sufficient to sustain a finding*' of negligence in that case. '(See, also, Griffen v. Manice, 166 N. Y. 188.)
For this reason, I think, the trial judge erred in'directing a, nonsuit.
Judgment and order affirmed, with costs.