Appeal from the District Court of the United States for the District of Vermont.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an action in tort, brought by Delia H. Exner to recover damages to her person, property, and business which were caused by the explosion of dynamite kept by the defendant company in connection with work upon a hydroelectric development at Bellows Falls, Vt., in which it was engaged. The plaintiff Frederick Exner, the husband of Delia H. Exner, was joined as a plaintiff because he sought to recover damages for injuries to his marital rights.
The defendant kept dynamite in a small hut on the westerly bank of the Connecticut river located conveniently to its work. This hut was approximately 935 feet from the dwelling of the plaintiffs, in which they rented rooms and apartments and carried on a restaurant and lunchroom. The dynamite hut was located close to a thickly settled part of Bellows Falls, and within fifty rods of five dwelling houses, a hotel, several factories, and business buildings belonging to persons other than the plaintiffs.
Mildred Wolfel, one of defendant's witnesses, who observed the explosion from the New Hampshire side of the river, 300 or 400 feet from where it occurred, said that she saw two men coming out of the dynamite hut carrying boxes; that she saw a flash and a ball of fire and then another flash, and experienced an explosion so severe as to throw her across the road. The hut was blown to atoms by the explosions, and three men engaged in getting the cases of dynamite to take down to the place along the river where the blasting was to be done were killed.
There was evidence that Mrs. Exner, the plaintiff, who was in bed in her house at the time of the explosion, was thrown out of bed and received injuries, that her house was so badly shattered as to require extensive repairs, and that her business was damaged. The accident occurred on February 18, 1928.
The principal storehouse of the dynamite was on the eastern or New Hampshire side of the river. From that, dynamite was brought in an automobile across the bridge and placed in the hut to be warmed so as to be in condition for use when needed for blasting. Evidence was introduced that twenty cases of dynamite, weighing fifty pounds each, were sent from the storehouse across the river to the hut the day before the explosion, and that three such cases were still on hand in the hut before the additional twenty cases were brought to it. The morning of the explosion, an order had been given to send fourteen boxes across the river to the hut, but they had not been taken over prior to the explosion. There was evidence that after the explosion one of the witnesses picked up as much as two fifty-pound cases of unexploded dynamite at the scene of the explosion and found four or five more in a tool box thirty to fifty feet from the hut. The general foreman of the defendant testified that about one thousand pounds of dynamite were ordinarily required for daily use in blasting, but on some days when the company was not doing much drilling much less than one thousand pounds would be used.
The defendant's president testified that there was no place where the dynamite hut could be located that would be accessible to the work that would not be within fifty rods from an inhabited dwelling, and, if it had been placed beyond that limit, the dynamite would necessarily have been too cold for use before it reached the job and would have been carried more frequently than was the case through the streets of Bellows Falls, to the greater peril of the inhabitants. He also said that the hut was adopted as a place to store a supply of dynamite for daily use after a hearing before the deputy fire marshal of the state, and with his consent.
There is a statute of Vermont (Rev. Laws 1880, § 4323 [now G.L. 7109]), the consideration of which is involved in this case, which reads as follows:
"Keeping Explosives. A person who keeps or suffers to be kept upon premises owned or occupied by him, within fifty rods of an inhabited building of another person, more than fifty pounds of gunpowder or nitroglycerine at one time, or more than one pound, unless contained in sound canisters of tin or other metal, or a package containing more than fifty pounds of dynamite, shall be fined twenty-five dollars, and twenty-five dollars additional for each day that it is so kept after notice from an inhabitant of such town to remove the same."
Section 13 of No. 147 of the Acts of the Vermont Legislature of 1919 also provides:
"Sec. 13. Conditions of Fire Hazard; Orders by Fire Marshal. Whenever the state fire marshal or deputy fire marshal, or either of them, find any building or structure, which, for want of repair or by reason of age or dilapidated condition, or for any others cause is especially liable to fire, and which is so situated as to endanger other buildings and property, and whenever they, or either of them, find in any building or upon any premises, any combustible or explosive material, or conditions dangerous to the safety of said building or premises, they shall have power to make reasonable orders for the repair of said building or buildings and the removal of said combustible or explosive material, and the remedying of any dangerous conditions, and such order shall be forthwith complied with by the owners or occupants of said premises or buildings. Provided, however, that a municipality that has building inspection and fire limits ordinances, nothing herein shall be construed to affect such local regulation, but the jurisdiction of the state fire marshal shall in such case be concurrent with that of the municipal authorities."
The plaintiff's declaration, as amended, contained four counts, under each of which an amount of dynamite in excess of fifty pounds was alleged to have been kept at the place of the explosion and within fifty rods ...