damaged. But the point determined is where the abuse of herself was in consequence of her own acts, that she cannot recover. For the error indicated the judgment below must be ... Reversed. 681. COOK v. CHAMPLAIN TRANSPORTATION COMPANY SUPREME COURT OF NEW YORK. 1845 1 Denio 92 ACTION on the case, tried at the Washington Circuit, October 4, 1843, before WILLARD, C. Judge. The defendants were a corporation under the laws of the State of Vermont. The first count in the declaration alleges that the plaintiffs were the owners and possessors of a certain building called a steam planing mill, with appurtenances, fixtures and machinery thereunto belonging, and of a large quantity of lumber and timber lying in and about the same, at Whitehall, on the east side of the basin, so called, near the village of Whitehall, about eighty rods from the steamboat dock on Lake Champlain, and about thirteen feet from the waters of said basin, the mill being covered with slate except the boiler-room, which projected from the main building and was of brick covered with shingles; that the plaintiffs carried on an extensive business in the mill and derived great gains, etc.; that the defendants, to wit, on etc., at etc. were the owners of a steamboat called the Washington, running on Lake Champlain, which a little before the time when etc. was lying at the steamboat dock, and about one o'clock of the day, was by defendants' servants etc., who were on board navigating her, put under way from the dock on a trip for St. Johns, Canada, and passed directly opposite and near to the plaintiffs' planing mill, remaining near said mill about ten minutes, being under a pressure of steam created by kindling and continuing the fires and heating the boilers by defendants' servants, etc. whereby the smoke and sparks arising from the fires ascended through the smoke pipes or chimneys of the boat; and that while lying near and passing opposite the plaintiffs' planing mill, the servants etc. of the defendants "so unskilfuly managed and conducted the said fires on board the said steamboat, etc. that a large quantity of fire and sparks of the said fires, ascending and coming through the said smoke pipes or chimneys of the said steamboat, etc. through the careless, negligent, improper and unskilful management, conducting and directing of the said fires on board the said steamboat, etc. by the officers, hands or servants thereof, etc. were driven and cast, blown and lodged in and upon the roof of the boiler-room of the said steam planing mill of the said plaintiffs, by reason whereof" the roof took fire, and the mill, fixtures, lumber, etc. were consumed; by means whereof, they lost their said property and were thrown out of em ployment and lost the services of their hands, etc. . . . The defendants pleaded not guilty. The fire occurred on the 13th May, 1842, about one o'clock in the afternoon. The plaintiffs having rested, the defendants moved for a nonsuit, on the ground . . . that there was negligence on the part of the plaintiffs and their servants in locating the mill in an exposed place; in constructing it of improper materials; in suffering shavings to remain in the planing-loft; in allowing canal boats to come to their dock to be towed; and in not keeping a lookout to guard against injury. The judge refused to nonsuit the plaintiffs. . . . Testimony was given on the part of the plaintiffs that they had forbidden canal boats to lie at their dock, and that they derived no emolument from the boats so stopping, and that it was against their wishes and without their consent. . . . After the evidence was closed, the defendants' counsel insisted, among other things, that the plaintiffs could not recover, because they had themselves contributed to the injury by erecting their building in an exposed place, and had not used due care in protecting it. . . . The judge charged, that the defendants had as good a right to place their mill where it stood as the plaintiffs had to navigate the lake and that the plaintiffs could not be denied redress on the ground ti they had contributed to produce the injury, as they had only done what they had a right to do; and that they were not bound to keep a guard to look to their property. . . . The defendants' counsel excepted to the several decisions of the judge in the course of the trial, and to each point of the charge and to the refusal to charge; and the jury found a verdict for the plaintiffs for $7,485.32. The defendants moved for a new trial on a case. A. C. Hand & S. Stevens, for the defendants. C. L. Allen & M. T. Reynolds, for the plaintiffs. By the Court, BEARDSLEY, J. Another ground for a nonsuit was urged; the injury done was said to be part at least attributable to the negligence of the plaintiffs themselves, in voluntary placing their property in an exposed position, and therefore the law would afford them no redress. On the argument at bar, this was strenuously insisted on as a fatal obstacle to any recovery in the case. The general principle is certainly well established, that if the plaintiff's wrongful act or negligence concurs with that of the defendant in producing the injury, the law will not aid him in obtaining any redress. . . . This principle has a broad and extended application, but nevertheless admits of exceptions and qualifications. Lynch v. Nurdin, 1 Adol. & Ellis (N. S.) 29; Bird v. Holbrook, 4 Bing. 628 [post, No. 713]; Illott v. Wilkes, 3 Barn. & Ald. 308 [post, No. 712]; Smith v. Dobson, 3 Mann. & Gr. 59; Walters v. Pfeil, 1 Moo. & Malk. 362. It is unnecessary, however, to state the exceptions, for the general principle does not, as I think, reach this case. The property destroyed was in an exposed and hazardous position, and therefore in more than ordinary danger from mere accidental fires. This risk the plaintiffs assumed, but not the risk of another's negligence. They were on their own land, and free to use it in any manner and for any purpose which was lawful. As was correctly observed by the circuit judge, "the plaintiffs had as good a right to erect their mill on the shore of the lake as the defendants had to sail on its bosom." It would be a startling principle indeed, that a building placed in an exposed position, on one's own land, is beyond the protection of the law; and yet it comes to this result upon the argument urged in this case. A landowner builds immediately on the line of a railroad, as he has an unquestionable right to do; it may be an act of great imprudence, but in no sense is it illegal; is he remediless if his house is set on fire by the sheer negligence of an engineer in conducting his engine over the railway? There must be some wrongful act or culpable negligence on the part of the plaintiff to bar him on this principle; and neither can be affirmed of any one for simply occupying a position of more or less exposure on his own premises. If the principle urged on the argument [of the defendant] is correct, it must be applied in all cases of the same character. The owner of a lot builds upon it, although in close proximity to the shop of a smith. The house is more exposed than it would be at a greater distance from the shop; but is this to exempt the smith from the obligation of care, and to screen him from the consequences of his own negligence? I certainly think not. A horse or carriage on the open ground of the owner may be more exposed to injury than they would be in a yard or a barn. But if damaged by the carelessness of a passerby, is the owner remediless because he chose to leave them in a place of comparative exposure and hazard? No one, I think, can doubt what the answer to this question should be. I refer to no authorities on this part of the case, for in my opinion none are requisite. It is but clearly to comprehend the principle on which this species of defence must rest, to see that it has no application to such a case as this. By what criterion, let me ask, are we to determine the hazards of a particular position, and on that ground say that the owner by his own folly has deprived himself of all protection? In this respect everything is comparative, but where is the true standard to be found? A house forty feet from a steamboat landing is in more hazard than one at the distance of forty rods, but is less exposed than one immediately on the wharf. Goods at the window of a shop are less safe than they would be on a shelf at the rear of the room; but is the owner remediless if they are carelessly soiled or broken by some one in the street? We may run through every imaginable variety of position, some of more and some of less exposure and hazard; and we must at last, I think, come to the conclusion that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care or judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others. All the legal questions appear to me to have been correctly determined, and upon the whole case, I see no reason to disturb the verdict. New trial denied. 682. JUDSON v. GIANT POWDER COMPANY. SUPREME COURT OF CALIFORNIA. 1895. 107 Cal. 549, 40 Pac. 1020 APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. The facts are stated in the opinion of the Court. Galpin & Zeigler, and J. F. Cowdery, for appellant. Judson and Shepard, having sold the premises for the manufacture of dynamite, cannot recover, under the maxim, "Volenti non fit injuria.". . . The grantors assumed the risk of imminent danger from their adjoining buildings. . . . Page & Eells, for respondents. . . . Plaintiffs, by their grant of their right to maintain the powder works did not waive defendant's negligence.... GAROUTTE, J. Respondents recovered judgment for the sum of $41,164.75, as damages for acts of negligence. This appeal is prosecuted from such judgment and from an order denying a motion for a new trial. The damages to respondents' property were occasioned by an explosion of nitro-glycerine, in process of manufacture into dynamite, in appellant's powder factory, situated upon the shore of the bay of San Francisco. Appellant's factory buildings were arranged around the slope of a hill facing the bay. . . . The explosion occurred in the morning during working hours, and originated in the nitro-glycerine house. There followed, within a few moments of time, in regular order, the explosion of the other buildings, the two magazines coming last; but, though last, they were not least, for their explosion caused the entire downfall and destruction of respondents' factory, residences, and stock on hand. . . . 1. Respondents sold the premises to appellant for the manufacture of dynamite, and it is claimed that the maxim "Volenti non fit injuria" applies, and therefore no recovery can be had. We attach but little importance to this contention. The grant of these premises for the purpose of a dynamite factory in no way carried to appellant the right to conduct its factory, as against the grantors, in any and every way it might see fit. There is no principle of law sustaining such a proposition. Let it be conceded that respondents, by reason of their grant, could not invoke the aid of a court of equity to prevent the appellant from conduct ing its business; still that concession proves nothing. This action is not based upon the theory that appellant's business is a nuisance per se, but negligence in the manner in which the business was conducted was alleged in the complaint, and is now insisted upon as having been proved at the trial. In making the grant, respondents had a right to assume that due care would be exercised in the conduct of the business, and certainly they have a right to demand that such care be exercised. 2. It is argued that the explosion of all powder-works is a mere matter of time; that such explosions are necessarily contemplated by every one who builds beside such works, or who brings dynamite into his dooryard. It is further contended that appellant gave to respondents actual notice of the dangerous character of its business by a previous explosion, which damaged respondents' property, and that respondents, by still continuing in business after such notice, in a degree assumed and ratified the risk and cannot now be heard to complain. The only element of strength in this line of argument is its originality. The contention that in the ordinary course of events all powder factories explode, conceding such to be the fact, presents an element foreign to the case. The doctrine of fatalism is not here involved. In the ordinary course of events the time for this explosion had not arrived, and appellant had no legal right to hasten that event by its negligent acts. Neither do we think respondents lost any legal rights by continuing to do business in this locality after being served with notice of the danger that surrounded them. While the notice was in the form of an object lesson, which came to them in no uncertain tones, yet appellant was not justified in serving it, nor were respondents negligent in disregarding it. Respondents were not bound to abandon their property, though negligence of appellant in the conduct of its factory was ever a menace and danger to their lives and property. Conceding that respondents, by their grant, thereby assumed certain risks and dangers which may be said to always surround the manufacture of dynamite, still they assumed no risks and waived no action for damages which might arise through appellant's negligence. Both reason and authority support this conclusion. . . For the foregoing reasons the judgment and order are affirmed. 683. HUNTINGTON & KENOVA LAND DEVELOPMENT CO. ?. PHOENIX POWDER MANUFACTURING CO. SUPREME COURT OF APPEALS OF WEST VIRGINIA. 1895. 40 W. Va. 711, 21 S. E. 1037 DENT, Judge: The Huntington & Kenova Land Development Company filed its bill in chancery in the Circuit Court of Wayne County |