
    Myers vs. Malcolm and another.
    The act of keeping a large quantity of gunpowder in a wooden building insufficiently secured, and situated near other buildings, thereby endangering the lives of persons residing in the vicinity, amounts to a public nuisance.
    If an explosion occur in consequence of the burning of the building where the powder is kept, and an individual is wounded or injured by it, he may maintain an action for his damages against the party guilty of the nuisance; and the latter will be liable, though the fire was not occasioned by his negligence.
    The plaintiff, however, can recover no more than his actual damages, and evidence that the defendant is a man of wealth ought not to be received.
    In general, where irrelevant evidence is allowed to be given, and the party objecting moves for a new trial on a 6ill of exceptions, the motion will be granted, without enquiring how far the evidence may have influenced the verdict.
    Case, tried at the Onondaga circuit in September, 1842, before Moseley, C. Judge. The action was brought to recover damages for an injury occasioned to the plaintiff by the explosion of a quantity of gunpowder belonging to the defendants. On the trial it appeared, among other things, that the defendants received about six hundred pounds of powder in kegs, and placed it in the. loft of a store in the village of Syracuse; that they were soon afterwards notified to remove it by the trustees of the village, and did so by depositing it in the upper story of a carpenter’s shop; that the shop was built of wood, and was situated on the canal, within the limits of the corporation; that there was a lumber yard near the shop, and several wooden buildings, some of which were inhabited dwellings, and others . were used as stables, &c,; and that the lower part of the shop was occupied during the day by a carpenter, but no fire was allowed in it, and it was locked up each night. It further appeared that the shop took fire on the night of the 20th of August, 1841, about five days after the powder had been deposited in it; and that, during the progress of the fire, the powder exploded, killing several persons, and seriously wounding and injuring others, among whom was the plaintiff. Proof was also given tending to show that the fact of the powder having been deposited in the shop was kept a secret, at the request of one of the defendants, until the time of the fire; and that then, owing to the confusion which prevailed, it was impossible to apprise the persons assembled of their danger, in season to prevent the catastrophe.
    In the course of the trial, the plaintiff offered to show that Malcolm, one of the defendants, was a man of wealth. This was objected to as irrelevant, but the circuit judge overruled the objection, and admitted the evidence, to which the defendants’ counsel excepted.
    The circuit judge charged the jury, among other things, that they should enquire whether the deposit of so large a quantity of gunpowder in the carpenter’s shop “was highly inexpedient, and dangerous to the lives of the citizens residing in the neighborhood.” He further told the jury that if they found in the affirmative on this question, their next enquiry should be whether the plaintiff received the injury complained of “in consequence of the explosion of the powder, he being lawfully engaged in the discharge of his duty at the fire;” and that, “in connection with the question of carelessness on the part of the defendants, it was proper to take into consideration the fact of their having been notified to remove the powder from its former place of deposit.” The defendants’ counsel excepted to the charge, and asked the circuit judge to instruct the jury that, unless the injury which the plaintiff sustained arose from the careless or negligent act of the defendants, they were not liable; and the judge did so charge. He was also requested to charge, 1st, That if the fire was communicated to the carpenter’s shop without any carelessness or negligence of the defendants, then the plaintiff could not recover; and 2d, That though “ the shop was, in the opinion ©f the jury, an improper place for storing the powder, by reason* of the lumber ^nd other combustible materials and buildings in the vicinity, yet if the accident did not happen in. consequence of these, the defendants were not liable.” *Thé jgdge refused thus to charge, and the defendants’ counsel excepted. The jury found a verdict for $730 damages in favor of the plaintiff, and the defendants now moved for a new trial on a bill of exceptions.
    
      J. R. Lawrence & J A. Spencer, for the defendants.
    
      B. D. Noxon, for the plaintiff.
   By the Court, Nelson, Ch. J.

The charge of the circuit judge, as detailed in the bill of exceptions, is not very explicit, but we may fairly assume, I think, that the case was put to the jury on the question whether the conduct of the defendants, in regard to the manner of depositing the powder, was such as to render them guilty of a public nuisance; and if that point has been properly determined in favor of the plaintiff, then I apprehend his right to private damages must follow as a corollary. In this view, the question of negligence on the part of the defendants, except so far as it may be necessarily involved in the question of nuisance, has very little, if any thing, to do with the case. But, on the other hand, if the defendants’ conduct was not sufficient to render them chargeable with the offence mentioned, then the whole gist of the action lies in negligence, and the enquiry might arise whether this was so connected with the injury as to render the defendants liable. Perhaps evidence enough was given at the trial to have justified the judge in putting the case to the jury in either aspect; though the most satisfactory position for the plaintiff, I am inclined to think, and the one most difficult to be answered by the defendants, is the ground that the depositing and keeping of the powder in the exposed situation described by the witnesses, amounted to a public nuisance, and that any individual sustaining a special injury from the act, was entitled to his private damages.

It was not doubted in “the case of The People v. Sands, (1 Johns. Rep. 78,) that the act of carelessly keeping fifty barrels of gunpowder in a housefin the village'ofi Brooklyn, was a nuisance at common law. The allegation iiythe«indictment there was, that the defendants kept the Barrels iit a certain house near the dwelling houses of divers good citiMns, and near a certain public street, without otherwise characterizing the manner of keeping the article; and, upon the principle that nothing will be intended or inferred to support an indictment, the court said, for aught they could see, the house might have been one built and secured for the very purpose of keeping powder in such a way as not to expose the neighborhood. Spencer, J. dissented, holding that enough appeared to make the question one for the jury to settle, who could enquire into the various circumstances of place, quantity, exposed situation of the neighborhood, dec. In a case before Lord Holt, (Anonymous, 12 Mod. 342,) the defendant was indicted and convicted for keeping several barrels of gunpowder in a house in Brent-ford Town, sometimes two days, and sometimes a week, till he could conveniently send them to London. And it was there resolved, “ that though gunpowder be a necessary thing, and for defence of the kingdom, yet if it be kept in such a place as it is dangerous to the inhabitants, or passengers, it will be a nuisance.” In Rex v. Taylor, (2 Strange, 1168,) the king’s bench granted an information against the defendant, for a nuisance, upon “ affidavits of his keeping great quantities of gunpowder,to the endangering of the church and houses where he lived,” or, as it should have been expressed, according to Bums, “ to the endangering of the lives of his majesty’s subjects.” (2 Burns' Just. 667, 8; 1 Russ. On Cr. 297, and note (o).)

I think the jury would have been well warranted in finding the defendants guilty of the offence, upon the facts disclosed in this case, as it cannot be doubted that the gunpowder was deposited in a building insufficiently secured and protected, and altogether unfit for the safe keeping of so large a quantity of the article. The situation of the building in other respects^ moreover, was such as to render the gunpowder dangerous to the lives of the citizens; for an explosion, either by accident or design, at any period of time after the deposit, would in all human probability have proved destructive to more or less of the inhabitants residing in the neighborhood.

Assuming that the jury were justified in coming to this conclusion, the authorities are abundant to show that the defendants were answerable to the plaintiff for the personal injury occasioned by the explosion. The principle is stated by Abbott, Oh. J. in Duncan v. Thwaites, (3 Barn. & Cress. 556.) He there said, “ I take it to be a general rule, that a party who sustains a special and particular injury by an act which is unlawful on the ground of public injury, may maintain an action for his own special injury.” The following cases exemplify and apply the principle, viz: Rose v. Miles, (4 Maule & Selw. 101;) Henly v. The Mayor &c. of Lyme Regis, (5 Bing. 91; 3 Barn. & Adolph. 77, 1 Bing. N. C. 222, S. C. in error;) Pierce v. Dart, (7 Cowen, 609 ;) Lansing v. Smith, (8 id. 146 ; S. C. in error, 4 Wend. 25, per Walworth, chancellor;) Mills v. Hall, 9 Wend. 315.)

But a new trial must he granted in this case for the error of the judge in admitting evidence of the wealth of one of the defendants. This was clearly inadmissible, and it is impossible to say what effect it may have had upon the verdict; nor is it “important to enquire, as this is a bill of exceptions. The plaintiff was entitled to the damages he had sustained, and nothing more, without regard to the ability or poverty of the defendants. The admission of the evidence implied at least that the jury might graduate their verdict in some measure by the means possessed by the defendants to satisfy it.

New trial granted. 
      
      
        а) See also The Mayor &c. of New-York v. Furze, (3 Hill, 612.)
     
      
      б) Such is undoubtedly the true and only safe mode of dealing with questions of this kind, when arising upon bill of exceptions, or writ of error. The decision of the judge in admitting the evidence is made in the presence of the jury, who are thus virtually told that it ought to influence their deliberations, and the court can hardly be certain, in any case, that the jury differed from the judge, and entirely disregarded it. (See Osgood v. Manhattan Company, 3 Cowen, 612, 621; Marquand v. Webb, 16 Johns. Rep. 89 ; Anthoine v. Coit, 2 Hall's Rep. 40; Strang v. Whitehead, 12 Wend. 64; Penfield v, Carpender, 13 Johns. Rep. 350; 
        Irvine v. Cook, 15 id. 239 ; Haswell v. Bussing, 10 id. 128.) But in Crary v. Sprague, (12 Wend. 41,) it seems to have been laid down that a new trial will be refused, notwithstanding the admission of improper evidence, provided the verdict appear to be sustainable upon the other evidence, and be consistent with what is just between the parties. (See also Beebe v. Bull, id. 504; Henthorn v. Doe, 1 Blackf. Rep. 165, note (6).) This is clearly the rule where the question arises on a case presenting a full history of the trial, and where the motion is addressed to the sound discretion of the court; but as to a bill of exceptions, quere. (See Cameron v. Irwin, 5 Hill, 272 ; Soulden v. Van Rensselaer, 9 Wend. 296, 7; Jackson v. Roberts, 11 id. 430, and the cases there cited.)
      
     