Cosulich v. Standard Oil Co. of New York

• Decision Date: 07 October 1890
• Parties: COSULICH et al. v. STANDARD OIL CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 118

25 N.E. 259

COSULICH et al.

v.STANDARD OIL CO. OF NEW YORK.

Court of Appeals of New York,

Second Division.

Oct. 7, 1890.

Appeal from judgment of the general term of the New York superior court entered on an order affirming a judgment of the trial court in favor of the plaintiffs.

The action was brought to recover the damages sustained by the burning of plaintiffs' vessel. The ground assigned for the defendant's liability to respond to the plaintiffs was that the injury was wholly due to defendant's negligence. The defendant, at the time of the burning, owned and managed a petroleum refinery on Newtown creek, in the county of Kings; and the plaintiffs' vessel was lying at the wharf (next) adjacent thereto. The oil within defendant's inclosure got on fire, and a quantity of it while burning flowed down a pipe which was connected with a lighter, laden with petroleum, moored at the defendant's wharf. The pipe was used by the defendant in pumping oil from vessels into the refinery. The lighter at once exploded, and burning oil and sticks therefrom were thrown upon the plaintiffs' vessel, which was about 20 feet distant, setting it on fire. The damages resulting are stipulated to have been $15,000. The only evidence relating to the supposed cause of the fire, and the alleged negligence of the defendant, was presented by the plaintiffs, and is here recited. Ernest Berger, a plumber then employed in a factory immediately adjoining the defendant's works, testified: ‘I was sitting in the front office, * * * and just across the street was a boiler,-a still or agitator boiler,-I don't know what you call it; I don't know what oil-yards call it,-I never worked at oil yards; and when I looked out I see this boiler commence. The first thing I heard a little grumbling, a growling in the air, and at the same moment I see the boiler commence to wabble,-to shake. It gives a big explosion, and the men ran out, and I followed them, * * * and that explosion came and upset our factory. It threw me down, and the same moment, when I turned again, it gives out much dust; the whole building was afire,-the whole front, the whole windows, everything was on fire,-and the whole street was one burning fire of oil. Well, how the oil got on fire I can't tell. The agitator boiler or tank was an iron structure standing above the wall. * * * It was an upright tank, an iron tank, and it was, if I am not mistaken, about ten feet in diameter. * * * It was round, and painted black. And it was this still or agitator or boiler, that I saw shaking.’ Nicolo Gasbach, the third mate on plaintiffs' vessel, testified: ‘I was inside my cabin, sitting on my box; and when I was inside I saw a flash, and at the same moment, all at once, an explosion, and whistle blowing. The whistle was, I think, from the steam-engine in the yard.’ When plaintiffs rested, the defendant asked for a nonsuit, which was denied. Thereupon, and without giving any evidence, the defendant rested. The jury found a verdict in favor of the plaintiffs.

Lewis Cass Ledyard, for appellant.

Lorenzo Ullo, for respondents.

PARKER, J., ( after stating the facts as above.)

We are of the opinion that the evidence presented by the plaintiffs failed to establish a cause of action against the defendant, and consequently that the trial court erred in denying the motion to dismiss the complaint made after plaintiffs had rested their case. The fact that the injury sustained by the plaintiffs may have been a direct result of the fire which originated upon the premises of the defendant does not of itself render it liable to respond in damages therefor. The defendant was not maintaining a nuisance. Its business was lawful, and, in its conduct, the law does not impose the obligation of saving harmless others from the consequences resulting from the occurrence of inevitable accident, but rather burdens it simply with the duty of using reasonable care and caution to save others from injury. If it omitted that duty, and failed to observe that ordinary care which was incumbent upon it, then, because of such neglect, it became legally chargeable with the damages directly resulting therefrom, but not otherwise. Losee v. Buchanan, 51 N. Y. 476. As the existence of negligence is an affirmative fact to be established by him who alleges it as a foundation of his right of recovery, it was incumbent upon the plaintiffs to point out, by evidence, the defendant's fault, for the presumption is, until the contrary appears, that every man has performed his duty. This rule has been frequently applied in cases where a fire has spread over and upon the lands of an adjoining owner to his damage. Clark v. Foot, 8 Johns. 421;Stuart v. Hawley, 22 Barb. 619;Lansing v. Stone, 37 Barb. 15;Calkins v. Barger, 44 Barb. 424. It has likewise been enforced against persons seeking to recover for damages sustained by fires originating from locomotives in operation upon railroads. Collins v. Railroad Co., 5 Hun, 503, 71 N. Y. 609. But the plaintiffs insist that, while negligence cannot be inferred from the fact that the fire originated upon the premises of the defendant, it may be presumed from the proof of an explosion. It is difficult to discover a reason for holding that proof of the occurrence of a destructive fire in defendant's premises does not raise a presumption of negligence, while proof of the mere fact of an explosion does. It has been said that there is a general disposition among men to preserve their property, and escape liability, and that ordinarily these motives will secure that degree of care and caution which the safety of the public demands, and hence the presumption of duty performed, which in cases of fire will protect him until the facts be proven from which negligence can be inferred. For precisely the same reason he is entitled to the benefit of such presumption in the case of an explosion, where no contractual relation exists; and the plaintiffs must go one step further, and prove the facts from which it can be legitimately inferred that either in construction, repair, or operation, he omitted that reasonable care and caution which he should have observed. As this position is supported by authority, reference will be made to a few of the cases. In Losee v. Buchanan, supra, the action was for damages done to the buildings of the plaintiff by the projection onto his premises of a boiler, resulting in serious injury to several buildings. The court, in a well-considered opinion delivered by Judge EARL, held- First, that the plaintiff could not recover in the absence of proof of fault or negligence on the part of the defendants; second, that if the explosion was caused by a defect in the manufacture of the boiler he is not liable, in the absence of proof that such defect was known to him, or was discoverable upon examination, or by the application of known tests. That case would seem to be controlling here. The plaintiffs proved simply an explosion. The inference is perhaps permissible that the subject of the explosion was the receptacle described as a boiler, tank, still, or agitator, although no witness pretends to assert that it was destroyed or torn down. If it may be inferred that it was the tank, the evidence is silent as to the cause. It does not point to unskillfulness or carelessness on the part of the employes having the tank in charge, nor suggest defects in consruction, or omission to keep in repair, and therefore falls far short of the requirements which the court asserted, in the Losee Case, to be essential to a recovery. In Walker v. Railroad Co., 71 Iowa, 658, 33 N. W. Rep. 224, the plaintiff's property was injured by the explosion of a quantity of dynamite then on a car standing in defendant's yard. The complainant averred that the dynamite was not properly protected; that the fire had caught from passing engines; and that the car was negligently permitted to stand in an improper place. There was no evidence that the fire had caught because the engines were defective in their...