Derry Coal & Coke Co. v. Kerbaugh , 222 Pa. 448 ( 1909 )

Opinion by

Mr. Justice Fell,

A number of houses owned by the plaintiff were injured by the explosion of dynamite and blasting powder that had been stored in two small frame buildings, near each other and within a half mile of the plaintiff’s property. Several tons of dynamite were placed in a building fifteen feet square and seven feet high, in which there was a stove used to heat the building and to thaw dynamite that had frozen. On three sides of the stove there were racks on which the frozen dynamite was placed to thaw it for use. There was testimony tending to show that boxes of dynamite placed on the racks would be from ten inches to two feet from the stove; that twenty minutes before the explosion there were boxes of dynamite on the racks and that the stove was red hot; that dynamite would explode without contact with fire at a temperature of 360 degrees; that it was unsafe to have a fed hot stove in a small building where a large quantity of dynamite was stored; that on the floor of the building there were bundles of wires to which were attached dynamite caps, which would explode if trod upon; that a few seconds before the explosion a fireman in charge of the buildings was seen running from them towards men who were working in a cut nearby, waving his hands as though to warn them of danger.

There was no evidence of negligence in the care of the powder house, and the instruction to the jury was that, if the explosion originated in that house, there could be no recovery. The verdict establishes as a fact that the first explosion was in the dynamite house, and the only question to be considered is whether there was sufficient evidence of negligence in storing and handling the dynamite to warrant the submission of the case to the jury.

The exact cause of the explosion was not shown, but the case was not left to the jury to find negligence from the mere fact of the explosion. A condition, entirely under the control of the defendant, was shown, to which as a producing cause the explosion might be attributed. The presence of a red hot stove in a small building and within a few inches of the dynamite and of explosive caps on the floor was under the testimony an unsafe condition, from which an explosion might result. In the recent case of Sowers v. McManus, 214 Pa. 244, it was said: “While the possession of dynamite to be used for lawful purposes is neither unlawful nor negligent, the person in possession of it is, as to third parties, bound to the highest degree of care, and failure to take any reasonable precaution to prevent explosion of it while in storage is negligence.” No explanation of the cause of the explosion was furnished by the defendant and it was left to the jury to accept the theory of the plaintiff, based on affirmative evidence of negligent acts, or that of an unaccountable accident advanced by the defendant.

The judgment is affirmed.