
    (121 App. Div. 488.)
    HALL v. NEW YORK, N. H. & H. R. CO. et al.
    (Supreme Court, Appellate Division, Second Department.
    October 4, 1907.)
    1. Explosives—Personal Injuries—Persons Liable—Railroads—Construction.
    Where dynamite obtained by a contractor engaged in widening railroad tracks for use in his work exploded, and injured plaintiff, but it did not appear that the railroad company had anything to do with the dynamite and the cause of the explosion was unknown, a verdict against the railroad company was unwarranted.
    
      2. Same—Keeping op Dynamite.
    The keeping of dynamite by a contractor engaged in widening railroad, tracks along the line of work for immediate use is not within an ordinance making it unlawful to have or keep dynamite in any place except in magazines erected for the purpose according to plans approved by the fire commissioners and under a license from the mayor.
    [Ed. Note.—For eases in point, see Cent. Dig. vol. 23, Explosives, §§ 4, 5.1
    Appeal from Westchester County Court.
    Action by Hattie Hall against the New York, New Haven & Hartford Railroad Company and another to recover damages from a nuisance. Judgment for plaintiff, and defendant railroad appeals. Reversed, and a new trial ordered.
    Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, RICH, and GAYNOR, JJ.
    Gustav R. Hamburger, for appellants.
    William A. Walsh, for respondent.
   GAYNOR, J.

The widening of the appellant’s railroad tracks in

the City of Mount Vernon was being done by a contractor under a written contract with the appellant. Rock had to be blasted in the work by the contractor. The contractor used dynamite for this purpose. One hundred and five pounds of it in a box at a point on the work exploded, and the shock injured the plaintiff in her house nearby. She brought this action for damages against both the contractor and the railroad company (the appellant), and got a verdict of $500 against both. There is no evidence that the appellant had anything to do with the dynamite. It was brought on the work for necessary use by the contractor. The cause of the explosion is unknown. The learned trial judge also erred in his charge in respect of the city ordinance. In sum and substance it makes it unlawful “to have or keep” dynamite, or other explosives named, in any place in the city, except in magazines erected for the purpose according to plans approved by the fire commissioners and under a license from the mayor. The “storing” of such explosives except under such a license is subjected to a penalty. The refusal of the learned trial judge to charge that this ordinance did not apply to the case was error. It only applies to the storing of explosives to be taken out and used elsewhere, and not to explosives along the line of work for immediate use, as was the case here.

The judgment should be reversed.

Judgment and order of the County Court of Westchester county reversed and new trial ordered; costs to abide the event. All concur. HIRSCHBERG, P. J., concurs on first grounds stated in opinion.  