Cleveland, C., C. & St. L. Ry. Co. v. Ballentine

• Decision Date: 16 February 1898
• Docket Number: 450.
• Citation: 84 F. 935
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BALLENTINE.
• Court: U.S. Court of Appeals — Seventh Circuit

84 F. 935

CLEVELAND, C., C. & ST. L. RY. CO. v. BALLENTINE.

No. 450.

United States Court of Appeals, Seventh Circuit.

February 16, 1898

On the morning of January 31, 1893, the Southwestern Limited, a passenger train of the plaintiff in error, hereinafter called for brevity the 'Railway Company,' bound from St Louis to Indianapolis and the east, by reason of a switch negligently left open, ran upon a siding, and collided with a train of 18 oil-tank cars, filled with petroleum oil standing in the yards of the company at Wann, now East Alton about 20 miles from East St. Louis. These yards were over 3,500 feet in length north and south, and over 625 feet in width. There were within the yards three small houses belonging to the Railway Company and some old stock pens and stock sheds. By reason of the collision, the forward end of the engine was driven through the end of an oil tank, and fire was communicated to the train of oil-tank cars. The passenger train, or such portion of it as had not taken fire from the collision, was moved away from the scene of the fire by means of a switch engine, and 10 of the oil-tank cars within a short time were also removed, leaving 8 oil-tank cars which were on fire. The smoke of the conflagration was dense and black, and the flames and smoke could be seen a long distance. The fire attracted the curiosity of a large number of people, and the yards were soon and during the entire forenoon occupied by from two to three hundred persons. This crowd was at different times during the forenoon warned by the servants of the Railway Company that there was danger of explosion. Hamilton S. Ballentine, the defendant in error, was a young man then 17 1/2 years of age, and at the time was working on the farm of his cousin, John Henry, about 2 1/2 miles distant from these yards. They both observed from the farm the ascending smoke and drove to a store at Wann, where they fastened their horse and proceeded to the scene of the wreck. This store was 1,000 feet distant from the fire, and was not in danger. The two remained at the wreck as curious observers of the conflagration for nearly an hour, and then returned to the store. At 11 o'clock the two drove down the highway to the crossing of the railway at the south end of the yards, and the crossing being obstructed by an engine, as they claimed, they fastened the horse to a telegraph pole, and proceeded upon foot north along and upon or near the railway tracks towards the scene of the conflagration. While walking close to the tracks, and not far from the burning tanks, and between the bank on the west and the tracks, a certain farmer who was acquainted with Henry called to him and others to come up and 'help put out these stock pens. ' Ballentine and Henry went to the stock pens, which were near the track upon which stood the burning oil-tank cars, and some one,--Ballentine said a man whom he thought was Moline, the section foreman,-- gave Henry a spike hammer, and the latter commenced to knock planks off the stock pens, and Ballentine assisted to carry them away from the fire. After thus working a half hour, Ballentine raked the leaves away, and, having concluded that work, he stood not far from the burning oil-tank cars, 'cooling off,' when one of the tanks of oil exploded, sending forth a dense smoke and flame of burning oil, which fell upon him, inflicting serious injury. Ballentine had lived with his cousin upon this farm for about two years. Before that time he had lived in the city of Philadelphia, and had attended the public schools of that city until he was 15 years of age. When Ballentine went upon the tracks the second time the 8 oil-tank cars were on fire. The smoke and flame of the burning ascended 30 feet in height, and were accompanied with a loud roaring, hissing, intermittent noise. The fire, it seemed, would first catch in the vent of the tanks, and, the seams of the tanks opening, the gas would shoot out with a loud hissing noise, as one witness describes, 'as though many locomotives were blowing off steam at once. ' Ballentine saw all this, but states in his testimony that he had understood the tanks were empty. The action is brought to recover damages for the injuries thus sustained. The declaration contains five counts, to each one of which a demurrer was interposed and was overruled. The first count avers the negligent collision, and that the Railway Company carelessly allowed the cars to remain on the siding exposed to the fire, and suffered the fire to burn and heat the tanks, whereby an explosion resulted, and injured Ballentine, who 'was then and there exercising due care and caution. ' The second count alleges the negligent collision; that the fire could have been extinguished by the exercise of care and caution, but was negligently suffered to spread, and heat and explode the oil tank, whereby Ballentine, then and there lawfully passing along the public highway, 'was prevented by said collision and fire from crossing the track of said railroad which was obstructed thereby, and who had no reason to suppose he was exposing himself to danger by so doing, and who was then and there in the exercise of due care and caution, was suddenly and unexpectedly smitten and enveloped by the said flames, and was thereby burned,' etc. The third count is like the first count, with the addition that the servants of the Railway Company represented to Ballentine 'that there was not danger; that the tanks contained cotton-seed and black oil; and that said tanks would not explode. ' The fourth count is like the first, with the additional averment that Ballentine was employed and ordered by the Railway Company to work for it in and about saving and preventing the loss and destruction from fire of its property, which he immediately, at the request of the defendant, then did, and that the Railway Company carelessly and negligently failed and neglected to notify Ballentine of the danger of the employment he was about to undertake, but...