The plaintiff has recovered a verdict for personal injuries received in consequence of the unexplained explosion •of a large quantity of dynamite. The occurrence was on April 3, 1900, and the dynamite was stored by the defendant in its powder house near the unincorporated village of Otisville, in Orange county. The plaintiff was seated at the time in her own house, less than 1,000 -feet from the dynamite magazine, and the explosion was sufficient in force and effect to unhinge the doors, knock in the sash, smash 'the windows, and jar down the ceiling. The neighborhood is very sparsely settled, but there were a number of inhabited houses as near to the powder house as, or nearer than, that of the plaintiff, and a public highway leading to the village runs alongside the powder house. The complaint charges the defendant with acts of negligence, 'but it is sufficient in form to comprehend a charge of the maintenance of a private nuisance. The case was submitted to the jury ■solely upon the latter theory, and the correctness of the ruling of the learned trial justice in that regard presents the only material question upon this appeal. I think the case is fairly within the principle • of Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, in which the court of appeals held that the keeping of gunpowder or other explosive material in a place or under circumstances where, in case of explosion, there will be a liability to injure the dwelling houses or the persons of those residing, in close proximity, may constitute a private nuisance, for which the person so keeping them is liable to respond in damages in case of injury resulting therefrom, without .regard to the question whether he was chargeable with carelessness or negligence. The court further held in that case that the question of nuisance depended upon the locality, the proximity of other buildings, the character of the magazine, the quantity of material stored, and all the surrounding circumstances, and that such question was to be determined by the jury as one of fact. The court said (page 581):
“That the defendant’s establishment was outside of the territorial limits • of a city does not relieve the owner from responsibility, or alter the case, if the dangerous erection was in close contiguity with dwelling houses or buildings which might be injured or destroyed in case of an explosion. The fact that the magazine was liable to such a contingency, which could not be guarded against or averted by the greatest degree of care and vigilance, evinces its dangerous character, and might, in some localities, render -it a private nuisance. In such a case the rule which exonerates a party *622engaged in a lawful business when free from negligence has no application. The keeping or manufacturing of gunpowder or of fireworks does not necessarily constitute a nuisance per se. That depends upon the locality, the quantity, and the surrounding circumstances, and not entirely upon thedegrée of care used. In the case at bar it should have been left for the jury to determine whether, from the dangerous character of the defendant’s-business, the proximity to other buildings, and all the facts proved upon the trial, the defendant was chargeable with maintaining a private nuisance, and answerable for the damages arising from the explosion.”
The cases relied on by the defendant are distinguishable. They arechieñy cases where a purely consequential injury has resulted from the intentional use of explosives in the prosecution of a lawful work with due care. In such cases it is held that' no liability follows such injury, as is the unavoidable result of the jarring of the soil or concussion in the atmosphere, unaccompanied by an actual trespass upon or invasion of the property of others by flying timbers, rocks, or otherwise. See Booth v. Railroad Co., 140 N. Y. 267, 55 N. E. 592,. 24 L. R. A. 105, 37 Am. St. Rep. 552; Holland House Co. v. Baird, 169 N. Y. 136, 62 N. E. 149. Here, however, the gravamen of the charge consists, not in the manner in which the dangerous material was being used in the actual prosecution of any work, but in the accumulation and the storage of the explosive in such a quantity and in such a place that no possible vigilance could prevent injury from being inflicted upon the persons and property of others in the neighborhood. The event has established that the house in which the plaintiff resided and the dwellings of several others were well within the radius of damage which the dynamite stored by the defendant was calculated to- occasion from its inherent nature and tendency,, quite irrespective of the question of caution in handling and use; that the persons and property of those residing in the vicinity were accordingly necessarily subjected to a danger which the utmost care on the part of those having the material in charge would be wholly powerless to avert; and that the consequent liability which the verdict imposes for the damage which has actually resulted is clearly within the principle of the authority first cited. The judgment and' order should be affirmed.
Judgment and order affirmed, with costs. All concur, except WOODWAKD,. J., who dissents.