#### Rudolph Furth, Jr. an infant, by his guardian, plaintiff, *vs.*Thomas Foster, defendant.

1. In an action to recover damages for injuries sustained by the plaintiff in ■ consequence of the negligence of the defendant in carrying gunpowder through the streets, proof that the defendant had submitted the powder, for examination, to experts—to persons who were familiar with the use of powder in blasting—and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that, is relevant, and should be admitted.

2. In such a case, a full opportunity should be given to the party sought to be charged, to show acts of caution and good faith on his part.

3. The question, in such an action, is, considering the risk to be run, were as many precautions taken by the defendant as would have been been taken by a man of ordinary prudence, to prevent harm. One of those would have been, consulting experts as to the risk to be run.

(Before Robertson, Ch. J., and Jones, J.)

Heard June 10, 1868;

decided December 31, 1868.

This action is1 brought to recover damages for injuries sustained by the plaintiff in consequence of the negligence of the defendant.

The complaint alleges that the defendant, ón the 3d of November, 1866, had in his possession, on his premises, 700 Second avenue, New Torlc, a large quantity of gunpowder ; that his servants on that day, by his direction, were engaged in removing this gunpowder, and by their negligence, a large portion of it was scattered and strewn *485in Bast Thirty-seventh street, in this city; that the plaintiff was lawfully in this street, and by the negligence of the defendant, and without any negligence on the part of plaintiff, this powder came in contact with a small fire in said street, and the plaintiff was thereby severely injured.

• The answer contains a general denial, and avers that the injuries to the plaintiff were caused by his own negligence.

The defendant kept a coal yard at 700 Second avenue, corner of Thirty-eighth street. On the 3d of November, 1866, he directed Monaghan, a cartman, (who was engaged in taking coal from the dock to his coal yard,) to take a can of powder from the premises 700 Second avenue, which the defendant handed to him for that purpose, and to throw it into, the East river. At the time the defendant handed the powder to Monaghan, a man named -Gordon was standing in the cart with him; and Monaghan drove off with the powder, Gordon being with him. Monaghan drove down Second avenue one block, then turned into Thirty-seventh street, and drove towards the East river. The can being rotten, broke, from the jolting of the cart. A portion of the powder was scattered along the route. Just after Monaghan turned into Thirty-seventh street, he discovered that the can was broken. Then Monaghan and Gordon, having been told that the powder was damaged and of no use, threw the powder—it being in cakes and lumps—in the street. The plaintiff, a boy then about four years of age, in company with his older brother, and some other boys, were in Thirty-seventh street, between Eirst and Second avenues near the residence of plaintiff’s father. There was a small fire in the street. This powder was in cakes scattered about there, and looked like coal known as “ coke.” Some of the boys threw a portion of it in the fire; the result was an explosion which injured the plaintiff, as well as other boys.

*486The action was tried before a justice of this court and a jury-

At the close of the plaintiff’s testimony, the defendant’s counsel moved to dismiss the complaint, on the grounds :

1st. That the act was not the act of the defendant, or the defendant’s agent, but of a stranger, who acted in direct violation of the defendant’s orders; and, 2d. That the act of this person would not have produced any fatal or injurious results had it not been for the combined negligence of a fire built in an improper place, and of children being left to play with dangerous elements without any care of any kind béing taken of them.

The motion was denied, and the defendant excepted.

The jury found a verdict in favor of the plaintiff" for #500, and from the judgment entered thereon the defendant appealed to the general term,

*J. H. Anthon,*for the defendant, appellant.

*H. L. Clinton,*for the plaintiff, respondent.

*By the Court,*Robertson, Ch. J.

In a case of this kind, where the sympathies of jurors are so apt to be drawn away from the 'Consideration of the principles which should govern the liability of any one who may be the original cause, -however remote or unwillingly, of an injury, a -full opportunity should be given to the party sought to be charged, to show acts of caution and good faith on his part. The learned justice before whom this action was tried, apparently upon that ground, instructed the jury “to consider whether, under the circumstances, the extent-to which the explosive nature of the compound had been -deteriorated by reason of wet and damp, and the ground which both these parties had for believing it was not explosive, there was carelessness and negligence on *487the part of Monaghan in the throwing it out of the cart into the street, or in carrying it in such a manner that portions of it could be jolted out of the cart into the street.” Under that instruction the jury, guided only by their own knowledge, would he likely to be governed entirely by the fact that the compound had been gunpowder and did explode, and find, therefore, that due care was not taken, because the defendant did not discover its explosive character. But I do not think it a matter of common' every day knowledge, that' gunpowder, submitted to the treatment to which that had been, in the condition that that in question was, was explosive. The can had originally been, for a time, submerged under water, after it'was thrown overboard from a vessel, and had again been wet in the plaintiff’s store by letting water run over it and into a hole in its side," a month previous to the accident, and it then became apparently so hard and solid externally, that the pieces into which it was broken resembled coke, although internally it might have been damp. Jurors might have different degrees of experience in regard to the effect of water on gunpowder, and some, perhaps, none at all as to the explodability of powder submitted to such a process and treatment, as it was not matter of common knowledge that it would explode, and persons employed in using powder had more occasion than any of the jurors to know, by experiment, the effect on powder of such wetting, and how far there might be reason to believe it had lost its explosive character. If so, it was the duty of the defendant'to have ascertained the risk run in transporting such powder through the ■ streets, by consulting such experts, as well as by making experiments himself. Undoubtedly a great many more precautions might have been taken to destroy the substance in question than were taken, but the question is, considering the risk to be run, were as many taken as *488would have been taken by a man of ordinary prudence to prevent harm, and one of those, undoubtedly, would have been consulting experts as to the risk to be run. I think, therefore, the offer of the defendant’s counsel to show that the defendant “ submitted the powder for examination to experts, to those persons who were familiar with the use of powder in blasting, and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that,” was relevant, and ought to have "been admitted.

For that reason, I think the judgment should be reversed, and a new trial had, with costs to abide the event.