Hattie Hall, Respondent, v. The New York, New Haven and Hartford Railroad Company and Eglee-Bunting Company, Appellants

Hattie Hall, Respondent, v. The New York, New Haven and Hartford Railroad Company and Eglee-Bunting Company, Appellants. Second Department, October 4, 1907. Negligence — independent contractor — injury by blast — storage of explosives — municipal ordinance. When a railroad is being widened by an independent contractor the railroad company is not liable for damages caused to an adjoining landowner through the unexplained exj&osibn of dynamite used by the contractor, in the absence of evidence that the railroad had anything to do with the explosive. In such action it is error to refuse to charge that' a municipal ordinance making it unlawful “to have or keep ” explosives in any place in the city except in magazines approved by the Are commissioners and licensed by the mayor, has ho application to 'explosives in immediate use along the line of work. Appeal by the defendants, The New York, New Haven and Hartford Eailroad Company and another, from a judgment óf the County Court of Westchester county in favor of the- plaintiff, entered in the office of the clerk of said county on the 24th day of March, 1906, upon the verdict of a jui-y for $500, and also from separate orders entered-in said clerk’s office on the 2.Vth day of March, 1906, respectively denying said defendants’ respective motions for a new trial made upon the minutes. The action was for damages by a nuisance. Gustav R. Hamburger [William Greenough with him on the brief], for the appellants. William A. Walsh [J. Henry Esser with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] 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. Eock 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 near by. 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 a work for immediate use, as was the case here. The judgment should be reversed. Woodward, Hooker and "Rich, JJ., concurred; Hirschberg, F. J„ concurred on first ground stated in opinion. Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event. ..