APPEAL by plaintiff from a judgment of the Superior Court for Jackson County (Findley, J.) allowing defendants' motion for judgment as in case of nonsuit in an action brought to recover damages for alleged wrongful death of plaintiff's intestate. Affirmed. The facts are stated in the opinion of the court. Messrs. A. Hall Johnston, and Alley & Alley for appellees. Connor, J., delivered the opinion of the court: Plaintiff's only assignment of error, upon this appeal, is based upon his exception to the order allowing defendant's motion, at the close of plaintiff's evidence, for judgment as in case of nonsuit. C. S. § 567. Evidence offered by plaintiff in support of the allegations of his complaint tends to show that Otto Stephens, son and intestate of plaintiff, was returning home from services at John's Creek Church in Jackson county about 9 o'clock on the night of August 18, 1921, accompanied by several boys of about his age; that while walking along the road with these boys he took some powder from his pocket and placed it in an envelop; that one of his companions struck a match and at tempted to ignite the powder, but failed to do so because the match did not burn; that thereupon he procured from another of his companions a match, saying that he would light the powder himself; he struck the match and ignited the envelop, which he was holding in his hand; there was a flash of the powder in the envelop; his clothing caught fire; the flames spread quickly over his body, causing the powder in his pocket to explode, with the result that he was so badly burned that he died the next day at 5 P. M. from his injuries. Several of his companions, as witnesses for plaintiff, testified, without objection by defendants, that Otto Stephens told them that he got the powder at the mill. There was evidence that he left his home alone during the afternoon, about 4 o'clock, to go to a neighbor's house to ask his older brother, who was visiting there, to go with him to the services at the church that night; that he stopped for a few moments at the mill on the land of defendant Blackwood Lumber Company, and that soon after leaving the mill he told his cousin, George Stephens, whom he met a short distance from the mill, that he had some powder. George, who was fourteen years of age at the time, accompanied Otto to the church, which was 3 miles from the mill, and was with him at the time he was fatally injured. There was evidence that defendants, in 1921, were conducting a lumber and logging business in Jackson county; that in the conduct of their business they operated a railroad, which ran about 75 yards. from plaintiff's residence; that during August, 1921, defendants were engaged in the construction of logging roads to enable them to get logs from the mountains to their railroad, and thence to their sawmills; that in the construction of said logging roads they used dynamite caps and blasting powder; an old mill was located on the land of defendant Blackwood Lumber Com pany about a quarter of a mile from the home of plaintiff, where his son, Otto, lived; there was a waterfall at this old mill, and children of the community were in the habit of going there to play. This mill had been maintained for many years, and was used by the people residing in its vicinity to grind corn and wheat. If the miller was present, he would grind for the people; if not, they would grind for themselves. The only means of closing the door to the millhouse was a but ton, with a nail through it, on the inside of the door, which any one could turn; there was no lock on the door. There was evidence that blasting powder was stored in the millhouse by defendants. This mill was about 3 miles from John's Creek Church, near which plaintiff's intestate was injured by the explosion of the powder, which he took from his pocket and placed in the envelop and then ignited with a match. Plaintiff's intestate was about fourteen years of age at the time of his injury and death, but there was evidence that he was the size and had the mental development of a boy of eight or ten years of age; that he sought the company of children younger than himself, and preferred to play with them rather than with children of his own age. He had attended school and was in the third or fourth grade. He sometimes accompanied his father, when hunting with a gun; had himself shot a gun several times, when with his father, and knew that powder would burn. From this evidence the jury would have been justified in finding that defendants had stored blasting powder, to be used in the construction of logging roads, in the old millhouse; that the door to this mill was not locked or securely fastened on the afternoon when plaintiff's intestate went there; that he entered the millhouse and procured there some of the powder which defendants had stored therein, and that this was the powder by the explo sion of which he was fatally injured when he ignited the envelop with a match while returning from the church 3 miles distant from the mill. There was evidence also that children, including plaintiff's intestate, were in the habit of going to the mill to play about the premises and in the old millhouse; that plaintiff's intestate was about fourteen years of age, and smaller in size than most boys of that age; that he knew that the powder which he got at the mill would, when brought in contact with fire, explode. There was no evidence, however, as alleged in the complaint, that the powder in the mill was in cans which were open and exposed, or that plaintiff's intestate went to the mill on the afternoon of August 18, 1921, to play. He went alone, and remained there only a short time. The court was of opinion that, upon all the evidence, the jury would not be justified in finding that the death of plaintiff's intestate was caused by the negligence of defendants, and therefore sustained their motion for judgment as in case of nonsuit, and dismissed the action. Plaintiff contends that in this there was error. Two questions are presented by this contention: First. Do the facts which the jury would have been justified in finding from the evidence constitute negligence on the part of defendants? Second. If so, was such negligence the proximate cause of the death of plaintiff's intestate? The essential elements of actionable negligence are: (a) Failure to exercise commensurate care, involving (b) a breach of duty, resulting in (c) damage to the plaintiff. Jaggard, Torts, chap. 12, § 246. The duty, the violation of which gives rise to a cause of action, is to exercise due care under the circumstances. There is no allegation or evidence in the instant case of the existence of any relation between defendants and plaintiff out of which any peculiar duty-as in the case of master and servant (— N. C. —, 131 8. E. 314.) arose with respect to the conditions at the place where the powder was stored. Defendants had stored blasting powder, a legitimate agency for the prosecution of a lawful purpose, in a building on their own land. This blasting powder was of a highly explosive nature when exposed to fire; unless so exposed, it was harmless. The building in which the powder was stored was often visited by the people residing in its vicinity for the purpose of having corn and wheat ground there into meal and flour. Children of the community frequently went there to play. Defendants had the right to store their powder in a house upon their land, but, in view of the explosive nature of the powder, defendants owed a duty to those who might go into the mill for the usual and customary purposes with respect to the manner in which said powder was stored, to the end that those who might go into the mill should not suffer harm by reason of the explosive nature of the powder. This duty was to exercise, for the protection of such persons, whether adults who went there to have corn or wheat ground, or children who went there to play, a degree of care commensurate with the dangerous character of the powder; such dangerous character being due to the very great probability, if not certainty, that it would explode if brought in contact with fire and injure persons near by. This court, in Brittingham v. Stadiem, 151 N. C. 299, 66 S. E. 128, has approved the doctrine stated in Mattson v. Minnesota & N. W. R. Co. 95 Minn. 477, 70 L.R.A. 503, 111 Am. St. Rep. 483, 104 N. W. 443, 5 Ann. Cas. 498, 18 Am. Neg. Rep. 511, as follows: "The degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be com mensurate with the dangerous character of the article." The doctrine was applied to the facts in that case, and defendant was held liable to plaintiff for injuries sustained by plaintiff while in defendant's store as a customer, caused by the careless handling of a pistol by defendant's son, a boy of twelve years of age, who was at work in the store for defendant. The negligence of defendant's employee, a boy twelve years of age, in carelessly handling a loaded pistol was imputed to defendant, upon the principle of respondeat superior. It will be noted that the injury occurred in the store, to plaintiff, who was present as an invitee. In Wood v. McCabe, 151 N. C. 457, 66 S. E. 433, Justice Brown, writing for the court, says: "All courts and writers agree that the degree of care required of persons using such dangerous instrumentalities as dynamite in their business is of the highest, and what might be reasonable care in respect to grown persons of experience would be negligence as applied to youths and children"-citing 7 Am. & Eng. Enc. Law, 2d ed. 411, and Mattson v. Minnesota & N. W. R. Co. supra. In this case defendants were held liable for damages sustained by plaintiff, a boy of 16 years of age, resulting from injuries caused by the explosion of dynamite which he had picked up from the ground, where it had been left by employees of defendant who had been using dynamite in the construction of a railroad. Plaintiff in this case was an employee of defendants, and was engaged in the performance of duties incident to ties incident to his employment when he was injured. Defendants were held to have been negligent because they employed plaintiff to do dangerous work, without instructing him as to the danger in handling dynamite as he was required to do by defendants. In Barnett v. Cliffside Mills, 167 N. C. 576, 83 S. E. 826, Justice Allen, writing for the court, says: Where there is evidence from which the jury is justified in finding that Plaintiff, a boy of eleven years of The principle stated and approved in Barnett v. Cliffside Mills, supra, is cited in Krachanake v. Acme Mfg. Co. 175 N. C. 435, L.R.A.1918E, 801, 95 S. E. 851, Ann. Cas. 1918E, 340, and upon its application to the facts in that case defendant was held liable to plaintiff. There defendant had stored dynamite, to be used by it in blasting, in a small house located within 75 or 100 yards of a main road running through the village of Acme; this house was visible from the road, and there was a path leading from the road to the house; the house was not inclosed, and the door to it was not locked or nailed up; the dynamite was in two boxes, one of which was open, so that the dynamite was exposed; plaintiff, a boy of seven years, returning home from school, left the road, went up the path to the house, and, finding the door open, entered the house and took five dynamite caps from the open box, which he carried home with him; upon arriving at his home, he went to the fire to warm, with the dynamite caps in his hand; while standing before the fire, the dynamite caps exploded, injuring his eye. This court held that defendant was negligent in leaving the dynamite exposed in the open box, in an uninclosed house near the public road. In this case plaintiff did not know the dangerous character of the dynamite cap, never having seen one before. It was held that there was no error in the refusal to allow the motion for nonsuit upon all the evidence in this case. In Fanning v. White, 148 N. C. 541, 62 S. E. 734, this court held that "to store dynamite being used for a legitimate purpose necessary for the construction of a railroad on its own right of way, in a shanty with the door open and the window torn out, affording any person ample opportunity to see the danger, with the warning written or printed on the boxes, cannot violate any duty owing to a person going upon the premises without a license, either express or implied." In that case this court affirmed a judgment of nonsuit, holding that one storing dynamite on his own premises for legitimate purposes, in boxes, with the word "Dynamite" written or printed on the box containing it, placed in a shanty with the door open and window torn out, thus affording ample opportunity to see the danger, owes no further duty to a person going upon the premises without either an express or implied license, and is not liable to him for damages caused by his companions shooting into the shanty and exploding the dynamite not knowing it was there. Chief Justice Clark dissented from the opinion of the court, emphasizing the facts, however, that defendants had stored in said shanty 1,600 pounds (— N. C. —, 131 S. E. 314.) of dynamite, and that there was nothing about the shanty to indicate to the person who shot into the shanty the presence of the dynamite. He says further that the shanty was located within the corporate limits of the town of Bridgeton, with a population of 300 to 400 inhabitants. He was of the opinion that defendant, upon the facts in that case, was guilty of maintaining a nuisance on its premises and therefore liable for injuries resulting therefrom. Trial-question for jurystatus of boy visiting mill. There was evidence that the door was not locked or securely fastened, as was the case in Fanning v. White, supra; there was no evidence that the powder was in an open box or can, as was the case in Krachanake v. Acme Mfg. Co. supra, and as plaintiff in this case alleged in his complaint; plaintiff's intestate knew that the article which he took and put in his pocket was powder, and knew that it would burn or explode when fire was brought in contact with it. He was not ignorant of the explosive nature of the powder which rendered it dangerous, as was the case with the plaintiff in Barnett v. Cliffside v. Cliffside Mills, supra, and in Krachanake v. Acme Mfg. Co. supra. He was not an employee of defendant as was the plaintiff in Wood v. McCabe, supra, nor a customer of defendant, as was the plaintiff in Brittingham v. Stadiem, 155 N. C. 299, 66 S. E. 128. Defendants, however, owed a duty to plaintiff's intestate, even if he was technically a trespasser on their premises, of a higher degree than not to wilfully harm duty to boy where powder him. This is true, Explosionsalthough he knew visiting mill that the powder is stored. was stored in the mill when he went there and knew its dangerous nature. This duty was to exercise care with respect to the manner in which the powder was stored, commensurate with its known dangerous nature and the probability of an explosion under circumstances which defendants must necessarily have foreseen. As to whether a prudent man, exercising due care, commensurate with the circumstances, would have stored powder, which was of a sufficiently explosive nature to make it a useful instrumentality for blasting purposes, in a quantity sufficient to be used in the work in which defendants were engaged, in an old mill, located as was the mill of defendants, where people of the community, and especially children were accustomed to go, with no means of locking or otherwise securely fastening the door to the mill, so that access could be easily had to the powder, is a question which, under our decisions, was proper to be submitted to a jury for them to determine question for whether or not de- gence in storing powder. fendants were neg ligent upon the facts in this case. In Jones v. Warehouse Co. 138 N. C. 546, 51 S. E. 106, it is said: "This court has long since abandoned the theory that negligence is a question of law and adopted the only rational and workable theory that it is a mixed question of law and fact. It is impracticable, if not impossible, for the court, as a matter of law, to say whether or not there is negligence except where the facts are admitted and no reasonable controversy can arise in regard to the inferences to be drawn therefrom. We have so frequently repeated this proposition that it is unnecessary to cite authority." While upon a motion for judgment of nonsuit, the facts as the |