Elkins, Bly & Co. v. McKean
| Decision Date | 06 January 1876 |
| Citation | 79 Pa. 493 |
| Parties | Elkins, Bly & Co. <I>versus</I> McKean. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 65.
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Duff & Leggat and Marshall & Patterson, for plaintiffs in error.—The action for McKean's death could be sustained only against those who sold the oil to him. If it had not been for the intervention of a third party, the defendants' negligence would have produced no injury to McKean; the defendants therefore are not liable: Wharton on Negligence, sects. 134, 439, 440; Loser v. Clute, 51 N. Y. Rep. 494; Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; Carter v. Town, 103 Mass. 507.
W. O. Crawford, A. L. Pearson and W. D. Moore, for defendant in error.—The persons who manage dangerous agencies by which others may be injured are responsible for negligence: Wharton on Negligence 781, 786; although there may be intervening agents: Norton v. Sewall, 106 Mass. 507; Thomas v. Winchester, 2 Selden 397; Dixon v. Bell, 5 M. & S. 198; Carter v. Town, 98 Mass. 567; Oil Creek & A. R. Railway v. Keighron, 24 P. F. Smith 316; Barney v. Bustenbinder, 7 Lansing 210. If one sells a dangerous and explosive fluid without giving notice of its character to a person ignorant of such character, he is liable: Wellington v. Downer Ker Oil Co., 104 Mass. 64. As to remote and proximate cause they cited Morrison v. Davis, 8 Harris 175; Lockhart v. Lichtenthaler, 10 Wright 164; Scott v. Hunter, Id. 195; Fleming v. Beck, 12 Id. 313; Pittsburg v. Grier, 10 Id. 54; McGrew v. Stone, 3 P. F. Smith 441; Pennsylvania Railroad Co. v. Kerr, 12 Id. 367.
This was an action by the widow of James McKean against Elkins, Bly and Co., manufacturers of refined petroleum or carbon oil. McKean died of burns received, either from the explosion of a lamp carried in his hand, or from a fall breaking the lamp and setting the oil on fire. The action was founded on the allegation that the defendants wilfully made and sold the oil for lighting purposes, knowing that it was highly inflammable, explosive and unsafe, and therefore unfit for use as a light. The case went to the jury distinctly on this proposition, the judge having charged in these words: "If you should get beyond this question (to wit, the identification of the oil as made by the defendants), the next one which presents itself, and probably the most important question in the case, is, Did the defendants wilfully and maliciously put it upon the market knowing it to be, as she alleges in her declaration, unsafe, explosive, dangerous and unfit for illuminating purposes? because if they did not, under these allegations contained in this declaration or statement of her cause of action, there can be no recovery, and your verdict must be for the defendants." According to this instruction no question of mere negligence, in putting the oil upon the market, arose or was presented to the jury; but their verdict of necessity must be founded upon the evidence of a wilful sale of such unfit oil, with a full knowledge of its inflammable and explosive character. Upon this precise statement the fifth and sixth assignments of error arise, that the court refused to say there was no evidence which would justify the jury in finding that the defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe and dangerous; and also that under the pleadings and evidence the plaintiff was not entitled to recover. Upon a careful review of the whole evidence there appears to be none to justify the submission of the fact of the wilful sale by the defendants of such an explosive and unfit oil for burning purposes with such a wilful and malicious knowledge as that set forth in the instruction. Indeed there is no evidence what the precise business of Elkins, Bly & Co. was — what they manufactured, or what they sold; or that the oil in question coming from their house was sold as illuminating oil. That they made and sold illuminating oil appears from the barrels bearing their name, and the fire test, 110°, marked upon them, and from the testimony of J. M. Torrence; but that their business was confined to this branch alone does not appear. The contrary may well be inferred from the nature of the business of distilling crude petroleum in which various products are given off, used for different purposes. That the oil in the can out of which Steele & Hart filled McKean's lamp came from the manufactory of the defendants, may also be inferred from the evidence; but that this particular oil was sold by them as illuminating oil appears nowhere. The only testimony tending to identify the purchase of this oil, as from the defendants, is that of J. M. Torrence, the salesman of Arbuckle & Co., who sold the oil to Caskey. But Torrence does not undertake in the slightest degree to identify the sale of this particular oil, or to state for what purpose it was sold by the defendants, or to prove facts which would show that if it was the same oil, it was not delivered through accident, but must have been an intentional sale for lighting purposes of a product known by them to be below the proper fire test. The sum of his testimony is that Arbuckle & Co. were in the habit of buying large quantities at a time of oil in barrels, and having it delivered in small quantities to suit their sales, and that the books of Arbuckle & Co. show the sale of a barrel of oil to Caskey on the 11th or 12th of January 1873. But Caskey testifies that he frequently tried the oil bought of Arbuckle & Co., and found it always to bear the proper test. The only oil which did not bear the test was that found in the can a day or two after McKean's death, and whether this was the same oil with which McKean's lamp was filled is left to depend upon the contradictory testimony of Steele and the boy Fedder, as to when the new barrel of oil was pumped into the can by Steele. And if it were the same, we are still met by the...
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Ross v. Cooper
...Rep. 357; People v. Simpson, 48 Mich. 474, 12 N.W. 662; People v. Brown, 53 Mich. 531, 19 N.W. 172; Head v. State, 44 Miss. 731; Elkins v. McKean, 79 Pa. 493; Farris v. Tex. Crim. Rep. , 56 S.W. 336; Smith v. State, 21 Tex. Ct. App. 277, 17 S.W. 471; Gantier v. State, 21 S.W. 255; Craven v.......
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