On the first trial of this cause in the court below the evidence of the plaintiffs was excluded from the jury, and a verdict for defendant found by instruction of the court. In considering this action of the court, we said in our former opinion that the court was divided in opinion as to the question whether it was error to give such peremptory instruction on the evidence introduced. The defendant now insists that, as there was no new evidence on the second trial, the insufficiency of the evidence to support the 1st, 2d, 3d and 12th counts is res adjudicata. The record shows a general reversal and remanding for error. The opinion, even if it were proper to refer to it, does not show how the court was divided on the question referred to. Eor all that appears in the record or o pinion, two of the judges may have thought the ruling erroneous and the third may have dissented. If there is an adjudication we must be able to make it out clearly. It is not sufficient that it may be argumentatively inferred. 1 Herman on Estoppel & Bes Adjudicata, Sec. 116.
That which is given the effect of a former adjudication in this court, should operate in like manner in the Supreme Court. The doctrine of that court is, that the opinion of the Appellate Court is no part of the record. Christy v. Stafford, 123 Ill. 464.
But whether we consider the former opinion of this court or not, an adjudication of the question under consideration is not shown.
The evidence did not tend to support the first three counts. They charged that the explosion which caused the destruction of plaintiffs’ property came from petroleum, etc., stored in defendant’s warehouse, running along the easterly line of plaintiffs’ building, while all the evidence introduced on the point showmd that defmdant’s warehouse where the oil was stored, and from whence the explosion is alleged to have pro-needed, was south of the plaintiffs’ building. That is a, fatal variance. 1 Chitty’s Pl. (16th Am. Ed.) 407; The Central Military Tract R. R. Co. v. Rockafellow, 17 Ill. 541; Disbrow v. C. & N. W. R. R. Co., 70 Ill. 247; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. & A. R. R. Co. v. Mock, Adm’x, 72 Ill. 141; T. W. & W. Ry. Co. v. Morgan, 72 Ill. 155.
The tenth count relies upon a breach of the city ordinance, but counsel for appellee is mistaken in supposing that it alleges the oil was kept in front of defendant’s premises or building. The decision of this court reported in 7 Ill. App. 438, held that the tenth count set forth a good cause of action, but did not decide that receiving the oil merely for transportation, and keeping the same for a reasonable time for that purpose, was a violation of the ordinance. The latter question we are now called upon to decide.
The evidence showed that all the articles which are alleged to have caused the damage complained of, came into possession of the defendant, and were kept in its building simply for the purpose of transportation. Whether the ordinance applies to such a keeping or storing, must depend on its terms and the object sought to be accomplished. The first clause of the ordinance makes it unlawful to store or keep for sale within the city any crude petroleum, etc., exceeding a quantity of five barrels of forty-five gallons each; the second, to keep for sale or on storage any refined carbon oil, etc., except such as will stand a fire test of 110 degrees Fahrenheit, etc.; the third, to keep any quantity of said articles exceeding one barrel of forty-five gallons in any part of a building excepting a cellar, etc.; the fourth, to keep or store any crude petroleum, etc., in front of any-building or on any street, alley, wharf, lot or sidewalk, for a longer time than is sufficient to receive in store, or in delivering the same, provided such time shall not exceed six hours.
The third clause seems plainly to prohibit the keeping by any person or corporation of more than one barrel, except in a proper place, to wit, a cellar. There is no exception in the ordinance in favor of a railroad company keeping the articles for purposes of transportation. Why should the court introdnce such an exception? The oils enumerated are just as dangerous to life and property when in possession of a railroad Avhose business is to remove it from the city, as in the hands of the shipper.
The fourth clause Avould seem to indicate that, in using the Avords store and storage, the common council did not intend to confine the ordinance to keeping in store for hire. Streets^ alleys, lots and sideAvalks are not commonly used for storage purposes. If appellee’s construction is correct, any quantity of the prohibited articles might he Itejyt in an open lot in the city if it was not kept there for sale, and the keeper received no compensation for the keeping. The design of the ordinance was to guard life and property against the dangers incident to the accumulation of large quantities of these inflammable substances in any one place. To permit railroad companies to ignore the ordinance, and take into their freight houses indefinite quantities of such articles, would amount to a practical denial of the protection intended.
The danger is the same Avhether the keeping is paid for or not, and whether it is kept for sale, exhibition, refining purposes or for hire. To obey this ordinance is, without doubt, an inconvenience to any one not provided Avith a cellar such as its terms require. Railroads may not he able to comply with the prescribed terms, and make any profit on transporting the oils specified, unless the rates allowed are made more liberal. It may become necessary for the roads to build expensive warehouses within the city limits to insure the safety songlit by the ordinance, or to remove the oil from the city as rapidly as delivered, to its Avarehouses outside of the city. But all these matters are trifles compared to the safety of the public and can have no Aveight in determining this important question.
The mere act of keeping the oils in its building, although prohibited by 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. While, therefore, Ave decide that tin? third clause of the ordinance means what it says, and is applicable to all persons and corporations, yet it will be a question for the jury whether the keeping of the oils was or was not the proximate cause of the injury complained of in the tenth count.
The twelfth count charges upon the appellee negligence in keeping the oil in its warehouse for an unreasonable time. If the defendant could keep in that warehouse any quantity of such oils, no matter how large, and for any period of time, no matter how long, without incurring the imputation of neglect in thus exposing to danger and loss the adjoining property of other persons, it is our duty to say that the evidence did not tend to support the twelfth count. On the other hand, if there was a limit as to quantity and time, it is plainly our duty to leave the jury to find the limit. The evidence tended to show that the oils in the defendant’s warehouse at the time of the fire, or a large part of them, had been there from Friday, October 6, to Sunday night, October 8, 1871, awaiting shipment; that they were of a highly inflammable character, exploding with great force at a comparatively low temperature; that the explosion and fire which caused and hastened the destruction of the plaintiff's’ property came from the oils, and that, but for this unexpected precipitation of fire upon the plaintiffs’ property before there was reason to anticipate its immediate destruction, a large part at least of the personal property could and would have been removed from all danger.
Whether the oils were kept for an unreasonable time depends on the quantity and character of the articles, their liability to cause damages like that complained of, the degree of exposure to explosion of the articles in the place they were kept, the character and condition of the defendant’s building, its proximity to the property injured, and upon the force or feebleness of these circumstances the jury should have been allowed to pass.
It is true that one is only answerable for the probable and proximate consequences of a fault and which may be foreseen by ordinary forecast. This rule does not shield defendant. If the evidence is to be believed, the explosion of the oils was a probable and proximate consequence of having them in that inflammable frame building through whose cracks the sparks falling from any passing locomotive might, at any time, have started a fire.
The danger might have been foreseen by any person of average intelligence. But, to make the defendant liable in damages, it is not necessary that the great fire itself might have been foreseen, nor that the defendant should have anticipated the loss from that particular source; if the circumstances were such that it should reasonably have been aware of the danger from the sparks of an engine, the burning of any other building or structure in that vicinity, or carelessness of any person, this court can not say, as a matter of law, that the oils were not kept an unreasonable time.
This case is distinguishable from Toledo, W. & W. R. R. Co. v. Huthersbaugh, 71 Ill. 573, where the court said: “ Had it mot been for the high wind prevailing from the southeast, it meeds ao argument to show the stable would have been in no danger whatever.” From the facts in this case, however, we think the jury would have the right to find that appellants, property was in danger all the time defendant used its warehouse for storing explosive oils; not io danger especially from a great conflagration which no one antiei pated or could foreseen but from any fire which might, through accident, carelessness or design, come in contact with the explosives. The ease of A. T. & S. Fe. R. R. Co. v. Stanford, 12 Kan. 354, well states the doctrine applicable to the facts in the case at bar:
iCAny 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 ia 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 consequences must be deemed too remote to constitute the basis of the cause of action.”
The words in italics point out the correct distinction; by reasonable diligence, or by the exercise of reasonable intelligence, a great tempest of fire could not have been foreseen, but fire and explosion could and would have been apprehended.
The law requires a man to guard against all dangers that are to be reasonably anticipated ; it is a class of dangers that is to be guarded against, and he is not excused because any particular danger within the class could not be foretold. We are content with the rule that the keeping of explosives unsafely guarded, in such quantities as to be dangerous to persons and property, near a frequented street, or other public place, or in the vicinity of the residences oír places of business of others, under circumstances that threaten calamity to the person or property of others, the consequences thereof being an explosion of such articles, which causes damage to the person or property of another, gives the latter a right of action tO' recover from the person keeping the explosives such damages as would not have happened in their absence. Meyers v. Malcolm, 6 Hill, 292; Cooley on Torts, 607.
One guilty of negligence in leaving anything dangerous in a place where he knows it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, is liable in damages if that injury shall be so brought about. Weiek v. Lander, 75 Ill. 93; Lynch v. Hardin, 41 E. C. L. 422.
It follows from what we have said that the court' should have permitted the plaintiffs to prove, as they offered to do at the trial, the condition of the defendant’s building and the floor thereof, as to its being soaked with oil or otherwise.
For this and the other errors herein indicated the judgment of the court below Js reversed and remanded.
Heversed and remanded.