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Exner v. Sherman Power Const. Co. - 54 F.2d 510

Rule:

Dynamite is of the class of elements which one who stores or uses in such a locality, or under such circumstances as to cause likelihood of risk to others, stores or uses at his peril. He is an insurer, and is absolutely liable if damage results to third persons, either from the direct impact of rocks thrown out by the explosion (which would be a common-law trespass) or from concussion.

Facts:

Defendant construction company stored a large amount of dynamite in a hut located close to residences and businesses. When the dynamite accidentally exploded, plaintiff, nearby resident, sustained injuries to her person, property and business. The other plaintiff, husband of nearby resident, sought recovery for injury to his marital rights. The trial court allowed the jury to determine liability based on Vermont Rev. Laws 1880, § 4323, which prohibited keeping dynamite within 50 rods of an inhabited building.

Issue:

Whether the storage of dynamite was an abnormally dangerous activity, which made the defendant strictly liable for damages to third persons.

Answer:

Yes.

Conclusion:

The court held that, although defendant kept dynamite within 50 rods of an inhabited building, plaintiffs' residence was not within 50 rods of the hut and, as such, plaintiffs were not within the class of persons protected by the statute. However, the court affirmed the trial court's judgment for plaintiffs on other grounds. The court held that storage of dynamite was an abnormally dangerous activity, which made defendant strictly liable for damages to third persons.

The court assumed that the storage of dynamite by defendant was not an act of which the plaintiffs could complain. There was uncontradicted proof that the place of storage and the quantities stored were approved by the deputy fire marshal of the state. While such approval would be no protection against claims of persons inhabiting dwellings within the prescribed zone, the plaintiffs were not of that class and could not have enjoined the storage. The liability of the defendant was not founded on illegal storage or on negligence, which was not proved, but upon the ground that the use of dynamite was so dangerous that it ought to be at the owners' risk.

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