inherently defective, and exploded in plaintiff's hands, and the gun dealer was held liable for the resulting injury.

11. Liability for damage from explosives.-The rule as to explosives, such as powder, gas, dynamite, steam, and the like, is much the same as that concerning fire-arms; and those who use any of these highly destructive agencies must exercise a high degree of care in such use, or respond in damages for any resulting loss. And if such instrumentalities are so kept as to make their very keeping a nuisance, the keeper will be held to be an insurer; that is, absolutely liable for all damage done thereby.**

Negligently leaving explosives near pathways or other places frequented by children may involve a liability for damages. Thus, where a train employee left an unexploded torpedo, not needed at that place for signaling, at a crossing, and it was picked up by a boy nine or ten years old, who was injured by its exploding while he was investigating it, the railroad company was held liable, although the employee had no authority to leave the torpedo where he did.45 But this rule of liability was not followed in a Massachusetts case, on the ground that the act of the employee in using the torpedo without authority was not within the scope of his employment; and where a torpedo was found by a boy along the railroad track, at some considerable distance from any sta

44 Hazard Powder Co. v. Volger, 58 Fed. 152; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413; Hay v. The Cohoes Company, 2 N. Y. 159, LEADING ILLUSTRATIVE CASES.

45 Harriman v. P. C. C. & St. L. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. R. 507; Euting v. Ry. Co., 116 Wis. 13, 92 N. W. 358, 96 Am. St. R. 936, 60 L. R. A. 158.

tion or crossing, and the boy was injured by its exploding, the company was held not liable, on the ground that it was not under duty to keep its track safe for trespassers.16

It has been held, and is the general rule, that one who sells to another explosives for the purpose of resale, and fails to tell such purchasing dealer of their dangerous nature, will be liable to the ultimate consumer who is injured by them, not knowing their explosive character. So, too, where explosives are given to a messenger or carrier for transportation, without giving notice of the dangerous character of the package, the one so delivering the explosives will be liable for injuries resulting from an explosion. But if the carrier is informed of the nature of the package, and the same is so marked as to indicate its dangerous character, the shipper will be relieved from responsibility for damages. But the carrier cannot be charged with negligence in handling the package in the usual manner of handling similarly appearing packages, if no notice is given of its dangerous character, and there is nothing about the package or its markings to arouse suspicion.*7

If one has stored high explosives in a place and manner usually safe as to such explosives, and they are set off by lightning, no liability attaches; but where one keeps explosives so that such keeping

46 Obertoni v. Boston & M. R. Co., 186 Mass. 481, 71 N. E. 980, 67 L. R. A. 422; Hughes v. Boston & M. R. Co., 71 N. H. 279, 51 Atl. 1070, 93 Am. St. R. 518.

47 Street, Foundations of Legal Liability, vol. I, pp. 59, 60; Cooley, Torts (student's ed.), p. 748; Standard Oil Co. v. Tierney, 92 Ky. 367, 17 S. W. 1025, 36 Am. St. R. 595, 14 L. R. A. 677; Nitroglycerine Case, 15 Wall. 524 (U. S.).

amounts to a nuisance, it has been held that the mere fact that the explosion was caused by lightning was no defense.48

So, one who employs steam boilers in the conduct of his business is held to a very high degree of care in their use, the rule being the same as in the case of other dangerous agencies; but no liability attaches unless the user of the steam boiler has failed to use adequate care; that is, care commensurate to the degree of danger involved in the use of such boiler.49

12. Liability for damages from poisons.-The same strict rule of liability applies here as in the conditions previously mentioned. If one puts into the course of trade things which are dangerous in their effects, as poisons which are not so labeled as to indicate their true character, he will be held liable to one injured thereby. This liability is placed on the ground of negligence in dealing with things dangerous per se, although Professor Street suggests that the liability "is perhaps also referable to the idea of breach of implied warranty." Where the retail druggist sells patent medicines as called for, and in the original package, which bears the label of the one who put it up, he is not liable for its ill effects. But if a retailer opens a package obtained from a wholesale druggist, and wrongly labeled, and sells the contents of the package in small lots, he will be held liable, on the ground that he has had opportunity

48 Prussak v. Hutton, 30 App. Div., 66 N. Y.

49 Marshall v. Welwood, 38 N. J. L. 339; Losee v. Buchanan, 51 N. Y. 476; Olive v. Whitney Marble Co., 103 N. Y. 292, 8 N. E. 552; Snodgrass v. Carnegie Steel Co., 173 Pa. St. 228, 33 Atl. 1104; Veith v. Hope Salt & Coal Co., 51 W. Va. 96, 41 S. E. 187, 57 L. R. A. 410.

to examine and see that the article sold is not that which it is claimed to be. So, too, a druggist who fails to clean his pestle and mortar after grinding up poisonous drugs, will be held liable for ill effects resulting to one buying from him another article, harmless in itself, but which has been made injurious by being ground in the poisoned mortar.50

13. Liability for damages from electricity or gas. -Electricity is another impalpable and dangerous force, and those who make, sell, or handle it are held to the use of the greatest care to avoid injuring those who must come and go where it is employed. Here again the rule is that the care must be proportioned to the danger to be avoided. "Electricity is a silent, deadly, and instantaneous force, and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use. "'51 Hence, in the use of the public streets for electric wires, charged with this dangerous element, the companies are bound to exercise the greatest of care, and a broken or fallen wire, charged with electricity, raises a presumption of negligence on the part of the owner of the wire.52 In a case where a store was destroyed by reason of the crossing of the wires of a telephone company and an electric railway, it was held on suit against the railway company that both it and the telephone company were bound to guard against the

50 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Sutton's Admr. v. Wood, 120 Ky. 23, LEADING ILLUSTRATIVE CASES; Loop v. Litchfield, 42 N. Y. 351. See also subject, TORTS, Part III, NEGLIGENCE.

51 Rowe v. Taylorville Elec. Co., 213 Ill. 318, 322.

52 Newark, etc., Co. v, Ruddy, 62 N. J. L. 505; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484, LEADING ILLUSTRAtive Cases.

contact of their wires by the exercise of a high degree of care, and for a failure in this respect either one was liable, irrespective of the question whose wires were installed first.53 In such cases the liability is joint and several.54

Akin to electricity is natural or artificial gas, and those manufacturing or dealing in it are held to a high degree of care because of its dangerous characteristics. For any negligence or failure to exercise due care to inspect its mains and apparatus used in distributing this commodity, or for failure to discover leaks in time to save life or property, where it is its duty to do so, the company will be liable.55 So it must observe care in turning off and on gas, and in repairing leaks in its fixtures or pipes.56 And a gas company was held liable in tort for the sickness and death of an invalid where they had shut off the gas in cold weather from the house in which he was living, without giving warning.57

53 Richmond, etc., Elec. Ry. Co. v. Rubin, 102 Va. 809. 51 Cumberland, etc., Co. v. Ware's Admx., 115 Ky. 581.

55 Heh v. Consolidated Gas Co., 201 Pa. St. 443.

56 Ferguson v. Boston Gas Light Co., 170 Mass. 182; Schmeer v. Gas Lt. Co., 147 N. Y. 529; Dow v. Gas Co., 69 N. H. 312; Beyer v. Con. Gas Co., 44 App. Div. 158, 60 N. Y. Supp. 628.

57 Hoehle v. Allegheny Heating Co., 5 Pa. Supr. Ct. 21; see also Coy v. Indianapolis Gas Co., 146 Ind. 655, where the company were held liable for failing to keep up the supply where there were sick children, whereby they had a relapse and died.