dissenting: The demurrer admits every allegation properly pleaded in the complaint. It is, therefore, admitted, for tire purposes of the demurrer, that the defendant White & Oo., while engaged in building a railroad for its codefendant, “wrongfully, unlawfully and negligently kept 1,600 pounds of dynamite in a small wooden building near the railroad track and near a public road, about one mile from *157tbe city of New Bern, without any notice or warning to the public that said building contained dynamite or other explosive.”
It further admits “that said wooden building in which said dynamite was kept was in a public pláce, where trains were passing and where many people passed to and fro; that the house appeared to be an old, abandoned shanty, without any evidence that it contained dynamite.”'
It further admits that storing such a quantity of dynamite near a .public road, where many people passed to and fro, near a city, in an apparently abandoned shanty, without any notice of dynamite being stored therein, “was a public nuisance to the citizens of Craven County and others along said railroad and said public road.”
The demurrer further admits that the plaintiff, who was an employee, “constructing a telegraph line and living in a camp near said shanty containing said dynamite, without any knowledge on his part that dynamite was stored therein,” and, “on account of the negligence of the defendant in keeping dynamite stored in said shanty, without any notice of such storage and without any guard, shot at a knot hole in said shanty, causing a terrific explosion,” demolishing the house, portions of which were blown against and severely wounded and injured the plaintiff, who- barely escaped with his life.
It was criminal negligence, greater by far than setting a spring gun or strewing poison about, to store 1,600 pounds of one of the most powerful explosives known to science in an apparently abandoned old shanty near a public road frequented by many passers-by, in a mile of a populous city and without the slightest notice that it contained concealed therein a most deadly peril. Any boy passing along the public road would be tempted to throw a stone and any sportsman to fire at a mark on an “apparently abandoned” old shanty near the side of the public road, when there was no notice or other reason to suppose that it was dangerous or other than it seemed.
*158"Whether the plaintiff was guilty of contributory negligence, which our statute (Revisal, sec. 483) requires “shall be set up in the answer and proved on the trial,” and whether there were reasons which excused the negligence of the defendants in storing 1,600 pounds of a most powerful explosive near the side of a much-traveled public road, within a mile of a large town, without any notice, are matters which could only arise upon an answer and on the trial. The nature and location (near a public road and near a railroad track as well) of the building was not such as would cause anyone to suspect that it was almost certain death to strike the house with a stone or other missile. It does not appear whether the shot went through the knot hole or not, for after it was fired the hole was the only part of the building that remained.
The demurrer admits the allegation that such conduct of the defendants was such negligence as to make it a “public nuisance,” and admits in express terms that “on account of such negligence” the plaintiff was moved to fire at 'a mark on such “apparently abandoned old shanty.” Upon such admissions, his Honor, in accordance with numerous precedents, a few of which are cited below, overruled the demurrer, so that the defendant might set up his defense. The defendant, notwithstanding the known diligence of his counsel, does not cite a single precedent in his brief to show error.
The doctrine is well known that spring guns and traps placed on one’s own premises, but to the danger of others, are a nuisance. This dynamite was in effect “concealed,” for it was put in an apparently abandoned shanty, where no one could, with the greatest forethought and sagacity, suspect it to be, and it does not appear even that it was on the premises of either of the defendants. Presumably it was not on thé premises of the owners of the dynamite, who were contractors; and whether or not the codefendant, the railroad company, was responsible for such negligence of an independent contractor is a matter not arising upon the demurrer. The demurrer *159admits that the conduct alleged was a “public nuisance,” and that “on account of the negligence” in storing dynamite in said shanty, without any notice, the plaintiff did the act which brought about the injury.
Where dynamite was stored on a farm in a shed not securely fastened, and the child of one of the landlord’s lessees got into the shed and exploded one of the cartridges, the landlord was held liable for the injury because there was no- warning on the shed to notify parents of the danger. Powers v. Harlow, 51 Am. Rep., 160. Yet there, unlike here, it appeared that the shed was on defendant’s own premises, and that it was not near the road.
It is negligence for a railroad company to leave on its own track explosive and dangerous objects, like a signal torpedo (exploded like dynamite), without notice or other precaution. 19 Oye., 15.
The law implies a duty not to place an explosive where it is likely tó injure property or persons. 7 Current Law, 16, 378. If some one else had exploded this concealed dynamite, injuring the plaintiff, who- happened to be near, the demurrer could not be sustained. It is, therefore, a question of contributory negligence, to be raised by answer, whether the defendant is protected from liability because the plaintiff himself fired the shot, which the demurrer admits he was moved to do “on account of the negligence of the defendant” in storing the dynamite in an unlikely place without notice. Whether the storage of dynamite, by reason of the location or its manner, is negligence, is a question of fact for a jury. The highest degree of care is required as to so powerful an explosive. Tissue v. Railroad, 112 Pa., 91.
In Allison v. Railroad, 64 N. C., 382, the company was held liable where an employee was killed by an.explosion of powder temporarily placed under his bed without his knowledge, the explosion having been caused, as was supposed, by fire from a torch while he was looking for his hat.
*160In Haynes v. Gas Co., 114 N. C., 203, in a very able opinion by Burwell, Jit was beld that the court should have told the jury that there was no evidence of contributory negligence when a boy ten years old, while walking along the street, grasped a live wire (which killed him), because there was no visible indication that it was charged with electricity.
This apparently abandoned old shanty near a much-traveled public road and near the .railroad track also, in a mile of a large town, had no notice on it, and nothing' else visible to indicate that it had 1,600 pounds of dynamite therein and that it was more deadly than a live wire.
Whether it was contributory negligence or not for a passerby to shoot at the old shanty, is a defense, and might be raised if set up by the answer; but surely it should not be held that the plaintiff was guilty of contributory negligence, or that the defendant was not guilty of negligence, upon a demurrer which admits that the storing of dynamite in such a place, without notice of any kind, was “a public nuisance,” and that “on account of such negligence” the plaintiff was moved to fire at the shanty.
The explosion was not caused by the shot striking the shanty, but by its striking the dynamite negligently stored therein by defendants, without any notice posted or other precaution, and that such storage was negligence is averred in the complaint and admitted by the demurrer.
On a complaint and demurrer the facts must be taken as stated in the complaint. There is no statement therein that the shanty was “on the defendant’s premises,” nor that the plaintiff shot “at its house.” It is not alleged that the defendant contractors had any premises; and, while it is alleged that the shanty was along the railroad track and near the public road, it is not alleged, how wide the right of way was, nor hoAv near the shanty was to the track, nor that it was on the right of way, and there is no allegation to justify the assumption that the plaintiff was a trespasser. Eor all that appears, *161be was in tbe public road and fired at a shanty near the public road, and not on the right of way of the railroad. It is hardly probable that 1,600 pounds of dynamite were stored on the right of way, so near the track as to endanger an explosion by the concussion of passing trains or the shanty being set bn fire by sparks. If stored there, this was beyond question a public nuisance. If any presumption of fact could arise on a demurrer, it is that the plaintiff, “living in a tent, engaged in putting up a telegraph line,” was on the spot rightfully and on the telegraph company’s premises.
If the demurrer does not admit the allegations in the complaint, i. e., (1) that the dynamite was “negligently, wrongfully and unlawfully stored near a public road”; (2) that, thus stored, without any notice, it “was a public nuisance,” and (3) that, “on account of the negligence of the defendants in storing dynamite at such place, without any warning to the public or this plaintiff,” the plaintiff shot at a knot hole on the shanty; if the demurrer does not admit these allegations, which are in the complaint, but, on the contrary, does admit facts not stated in the complaint, i. e., (1) that the shanty was on the defendant railroad’s right of way, and (2) on the defendant contractor’s premises, and (3) that the plaintiff was a trespasser, and (4) that the plaintiff was guilty of contributory negligence, then the defendants were well advised to resort to a demurrer instead of setting up such allegations in an answer which they might have found difficult to prove.
The vice in the argument of defendants is not only in assuming as a fact that the dynamite was stored on defendants’ premises, but, if that had been a fact (which could not be true as to but one of the defendants, if true as to either), in ignoring that the storing of so dangerous a substance “near a public road” without notice or other safeguard, is per se negligence and a public nuisance as well, because of the danger. When such is the case, the party guilty thereof is liable when injury occurs, whether the injury proceeds from the *162public nuisance by the negligent or malicious act of a third person or by the act of the injured party himself. One is liable if he places on his own premises anything that may be dangerous or injurious to the public.
In Smith v. Pelah, 1 Strange, 1264, Chief Justice Lee held that, if the owner of a dog knows that it is dangerous and has once bitten a man, and lets him go about or lie at his door, he is liable to an action by anyone bitten thereafter, though it happened by such person treading on the dog’s toes. Id., 3 Starkie Ev., 981. This Court has followed the same ruling as to liability of the owner for injury caused by a dog, though on the owner’s premises, if he knows he is dangerous. Harris v. Fisher, 115 N. C., 318. How much more, therefore, are the defendants liable for storing 1,600 pounds of dynamite “near the public road,” without any warning, and in a dilapidated shanty, where its presence could not reasonably be suspected.
In Woolf v. Chalker, 31 Conn., 131, the above English case is cited with approval, the Court adding that, when the owner of a dangerous dog allows him to be at large on his own premises and a trespasser has been bitten by him, the owner has been held liable, citing Loomis v. Terry, 17 Wend., 496; Sherfey v. Bartley, 4 Sneed, 58, both of which cases so hold. The above and many other like cases are cited and approved in Muller v. McKesson, 73 N. Y., 200. The fact that the dog is known to the owner to be dangerous makes him liable for the injury done by the dog, even on the owner’s premises and even to a trespasser, because such a dog, unmuzzled, is a common or public nuisance.
For a stronger reasón the dangerous storing of 1,600 pounds of dynamite in an old shanty near the public road and a railroad track, without notice or guard, would make such storing a public nuisance and the owner liable for any injury arising from an act done “on account of such negligence,” even though (as does not appear here) the dangerous instru*163mentality bad been stored on tbe defendants’ premises and the plaintiff had been a trespasser. We need not cite the many similar cases as to injuries to trespassers from spring guns set or poison placed on the defendant’s premises. Hooker v. Miller, 18 Am. Rep., 18; State v. Moore, 83 Am. Dec., 159.
In a late case from California (Kleebauer v. Fuse Co., 69 Pac., 246) the Court reviews the cases as to storing powder and other dangerous explosives, and says: “The principle is correctly stated by Mr. Jtistice Blackburn in Fletcher v. Rylands, 1 Exch., 265 : 'We think the true rule of law is that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and, if he does do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. But for his bringing it there no mischief could have occurred.’ This language was approved by Lord Gramo orth on appeal. 3 II. L. Cas., 330.” 1 Wood Nuisance (3d Ed.), 183, says that, when the storing of explosives on one’s own premises is under such circumstances as to be dangerous, it is a nuisance, “and if actual injury results therefrom, the owner is liable therefor, even though the act occasioning the explosion is due to other persons and is not chargeable to his personal negligence.”
The California Court, supra, cites many cases where the owner of the powder, etc., was held liable when the explosion was caused by lightning, on the ground that the cause was the negligently storing, giving opportunity for the explosion. Such was the cause here.
In Wilson v. Powder Co. (W. Va.), 52 Am. St., 890, the Court said: “Was the defendant maintaining a public nuisance ? If it was, it was engaged in the commission of a public wrong, and for injury resulting therefrom” the defendant is liable.
That this immense amount of dynamite stored in a dilapidated shanty near a public road, without guard or notice, was *164liable to be exploded, by any passer is shown by the manner in which it was exploded. That made it a menace to the public and a public nuisance, just as a vicious dog or a spring gun would be, and, being a public nuisance, under the above authorities, both English and American, the defendants would be liable even if the dynamite had been stored on defendants’ premises and the plaintiff had been a trespasser. People v. Sands, 3 Am. Dec., 296; Myers v. Malcolm, 41 Am. Dec., 744; Anon., 12 Mod., 342.
The cases which hold that one injured by a public, nuisance can recover of the owner without showing negligence, and even when the injured party is himself a trespasser or negligent, are very numerous. Besides those above quoted, and among those where an explosion results, are Kennedy v. Koopman, 67 Am. St., 134; 37 L. R. A., 489; Glycerine Co. v. Manufacturing Co., 45 L. R. A., 658; 71 Am. St., 740, and the numerous cases collected, 69 Pac., 249. The facts set out in the complaint and the very manner of this explosion demonstrate the imminent danger of explosion from such manner of storing dynamite, and of injury to those passing along the public road. These made it a public nuisance. Besides, the complaint specifically alleges that it was a public nuisance, and the demurrer admits the fact. Had it been a vicious dog on the owner’s premises, and he had bitten one treading on his toes, the owner would have been liable, if knowing the character of the dog. Here the owner did know the dangerous quality of the dynamite. Yet he left it at large, near a public road and near a railroad track, without guard ox notice, in a house where no one would suspect its presence. On all the authorities, this was a public nuisance, and the owner is liable for injury from an explosion, however caused, whether by man or the lightning, and whether by the plaintiff or another.