Fireworks are widely used to express patriotism, triumph, and gladness, to celebrate public events, to entertain crowds of people, and for various purposes, too numerous to mention. Such uses are no innovation, but are in accordance with an ald and well-settled custom of the country, sanctioned by the practice of every community. An exhibition of fireworks is not malum in se, but is evil or innocent according to circumstances. Unless malum in se, like a disorderly house, for instance, a nuisance is a matter of degree. Thus we have held that the storage of gunpowder is not a nuisance per se, and that it 'depends upon the locality, the quantity, and the surrounding circumstances,' which are for the consideration of the jury.
Degree implies gradation, and gradation depends on circumstances.
When disinterested army officers, expert from years of official experiments, testify that the degree of danger was so slight that they regarded the mortars as safe, and the only difference of opinion related to the method of using them, it would be hazardous to hold the danger so inherent and the degree of danger so extreme as to make the act a nuisance of itself, independent of the attending circumstances. If the circumstances are to be considered, they must be weighed in order to get at the degree of danger, and the weight of evidence is for the judges of fact. The circumstances of this case do not call for the hard and fast rule of a nuisance as matter of law, but for the judgment of a jury whether the occurrence was a nuisance as matter of fact. The judgment appealed from should be affirmed, with costs.