Robinson v. Greenville. boxes and shavings, on which was poured a large quantity of gasoline, some of the officers of the city assisting in the work, and several members of the council being present and making no objection. On applying a match, there was an immediate explosion, which destroyed the structure, killed several persons and injured others. This court properly held the city liable, following Dayton V. Pease, supra. And see Little v. Madison, 42 Wis. 643; s. c., 24 Am. Rep. 435; as explained in Schultz v. Milwaukee, Little v. Madison, 49 Wis. 254, 605; s. c., 35 Am. Rep. 793; Chicago v. Schmidt, 107 Ill. 187; Bathurst v. Macpherson, 4 App. Cas. 256; Kent v. Worthing Local Board, 10 Q. B. D. 118; Queen v. Williams, 9 App. Cas. 418. Undoubtedly there is difficulty sometimes in determining the class in which a particular case must fall; and it is also true that there is considerable conflict in the authorities, as to the extent of such liability. We will make no attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the distinction already stated between cases falling within the police power of the corporation and those in which it represents the property rights of the citizen. Reference to most of the cases on the subject, decided previous to 1877, will be found in Hill v. Boston, 122 Mass. 344; s. c., 23 Am. Rep. 332. And see Springfield v. Spence, 39 Ohio St. 665; Bathurst v. Macpherson, supra; Barnes v. District of Columbia, 91 U. S. 540. That firing cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is attempted to fasten liability for such injuries on a municipal corporation. We cannot say that the firing complained of in the petition was licensed or expressly authorized. While the common-law rule, that pleadings must be construed most strongly against the pleader, has been abrogated, we are not required, under the present system, to construe every equivocal word or phrase most strongly in favor of the pleader. On the contrary, the meaning of the pleader must be fairly ascertained, without regard to technical rules from the whole instrument. Crooks v. Finney, 39 Ohio St. 57. Of course if legal or technical words are used, we are to understand them in their recognized Robinson v. Greenville. sense, unless the context shows another sense was intended. The words of the petition, fairly construed, charge no more than that the authorities of the village permitted, that is, took no measure to prevent such firing; and so the case clearly falls within the first class to which we have referred, and hence the corporation is not liable. Morristown v. Fitzpatrick, 94 Penn. St. 121; s. c., 39 Am. Rep. 771, and Boyland v. New York, 1 Sapdf. 27, are both remarkably like this case in their facts, and in each it was held that the corporation was not liable. And see Campbell v. Montgomery, 53 Ala. 527; s. c., 25 Am. Rep. 656; Lafayette v. Timberlake, 88 Ind. 330. To be sure, it is urged here that the village is liable by force of the Revised Statutes, § 2640, which provides: "The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair and free from nuisance." In our opinion however the word "nuisance," in this connection, does not include an assemblage of persons engaged in such unlawful act, but refers to something which is in a sense fixed or permanent, as a defect in the street. But if we could hold otherwise, the result would be the same, for if nuisance embraces a mob, then the city is not liable for such nuisance, on the principle already stated. In any view the judgments below are right. NOTE BY THE REPORTER. Judgment affirmed. - See Tindley v. City of Salem, 137 Mass. 171; s. c., 50 Am. Rep. 289; Burford v. Grand Rapids, ante, 105. In Taylor v. City of Cumberland, Maryland Court of Appeals, July, 1885, it was held that "coasting" on the streets of a city is a nuisance, and the city is liable to a pedestrian injured thereby. The court said: "This sport, as thus described, was a nuisance of a very serious character. It is well settled that the corporation was under an obligation to exercise for the public good the powers conferred on it by its charter to prevent nuisance, and to protect persons and property, and that this duty is not discharged by merely passing ordinances. It is not relieved from responsibility unless there has been a vigorous effort to enforce them. Marriott's case, 9 Md. 160. It was held in this case that a municipal corporation having power by its charter to prevent and remove nuisances would be discharged from responsibility for them if they could not be prevented, or removed by ordinary and reasonable care and diligence; and it was also held that where ordinances sufficient to meet the exigencies of the case had been passed, a vigorous effort to enforce them would amount to the requisite care and diligence. There was evidence in the present case that the acting mayor of the city had, previously to the accident, instructed the captain Robinson v. Greenville. of police to break up coasting on the streets, and that the police did make and were making vigorous efforts to bring about that result. It was in proof that at the time the appellant was injured the sled which caused the injury was the only one then on the street. We are of opinion that the principle decided in Mayor v. Marriott should control this case. The defendant was bound to prevent the nuisance if it could do so by ordinary and reasonable care and diligence, but if it did use this degree of care and diligence it discharged its duty, and was relieved from responsibility, and a vigorous effort to enforce its ordinance on the subject would fulfill its duty in this respect." To the contrary, Faulkner v. City of Aurora, 85 Ind. 130; s. c., 44 Am. Rep. 1; Pierce v. City of New Bedford, 120 Mass. 534; s. c., 37 Am. Rep. 387; Shulte v. City of Mil waukee, 49 Wis. 254; s. c., 35 Am. Rep. 779. INDEX. ACCIDENT. See NEGLIGENCE, 222. ACCORD AND SATISFACTION. What is.] A creditor's acceptance of a smaller sum in satisfaction of a debt, ACTION. Joint, for negligence.] One injured by means of a defective sidewalk in a city, On check.] See BANK, 529. See MARRIAGE, 791; NEGOTIABLE INSTRUMENT, 631. ADULTERATION. See CONSTITUTIONAL LAW, 344. ADVERSE POSSESSION. Agreement not to sue.] Possession of land ceases to be adverse where the See MORTGAGE, 572. AGENCY. Compensation of agent.] See CORPORATION, 5. See FRAUD, 508. ANIMALS. See EVIDENCE, 45. ARREST AND BAIL. Subsequent arrest and bail.] Sureties on a criminal recognizance are not dis- another charge, and |