Goodlander Mill Co. v. Standard Oil Co.

• Decision Date: 31 May 1894
• Docket Number: 60.
• Citation: 63 F. 400
• Parties: GOODLANDER MILL CO. v. STANDARD OIL CO.
• Court: U.S. Court of Appeals — Seventh Circuit

63 F. 400

GOODLANDER MILL CO. v. STANDARD OIL CO.

No. 60.

United States Court of Appeals, Seventh Circuit.

May 31, 1894

Myron H. Beach, for plaintiff in error.

W. G Ewing and Virgil P. Kline, for defendant in error.

In November, 1887, the defendant shipped in a tank car from Lima, Ohio, to the Ft. Scott Gas Company, at Ft. Scott, Kan some 6,000 gallons of crude petroleum, deliverable to that company at East St. Louis. The tank car had a discharge pipe in the bottom and about the center of the tank, some four inches in diameter, and projecting about six inches below the bottom. The projection was threaded to receive a heavy cap screw. Within the tank the discharge pipe is fitted with a heavy valve to prevent the escape of oil. The valve rests upon a shoulder in the upper part of the discharge pipe. Below the shoulder there are four concaves made in the valve to permit the flow of oil upon raising the valve. An inflexible iron rod is attached to the valve, extending through the dome on the top of the tank, and projecting a foot or more above it. Within the tank at the top there is a coiled wire spring, arranged to hold the rod down, and keep the valve in position closing the outlet. To discharge the contents of the car through the lower discharge pipe, the cap is unscrewed and the pipe coupling attached. The valve, by means of the rod, is then lifted, and the oil permitted to flow through the outlet into the pipe, and conducted to the reservoir provided for its reception. The tank car arrived at Ft. Scott on the 17th of November, and was received by the consignee on the next day. The gas company caused the car to be removed from the yard of the railroad company, where it was delivered, and to be placed upon the switch track of another company located in a street a half mile away, between the property of the gas company and the steam flour mill of the plaintiff in error. This was done for the purpose of piping the petroleum contained in the tank into the reservoir of the gas company, located beyond the mill, and upon the further side of an intercepting street. The railroad track upon which the tank car stood was three feet distant from the furnace room of the mill, the latter being three feet below the level of the railroad track at that point. The car was placed directly opposite the window of the furnace room of the mill. On the afternoon of the 18th of November, and before or at the time of the removal of the car on that day it was observed by the engineer of the switch engine that the tank was leaking the oil dropping at the outlet under the car, and forming a pool upon the ground. On the morning of the 19th of November, two servants of the gas company undertook to discharge the oil into the reservoir of the gas company, through a pipe laid from the reservoir to the tank car. One of them examined the rod at the top of the car, and reported to the other that it was pushed down, indicating the valve to be in proper position. The other went under the car with a wrench to remove the cap, and attach the pipe leading to the reservoir. He observed that the cap was loose, and removed it with his hand; and it is stated in the brief of counsel for plaintiff in error-- without reference to the record for verification of the statement-- that this man observed, as he went under the car for the purpose of removing the cap and attaching the coupling, that the oil was leaking some, but that he did not deem the fact of moment, supposing that the valve was in its proper position, and would prevent the discharge of the petroleum until it was raised. Upon removing the cap, the oil flowed out before the coupling could be attached; and despite the efforts made to prevent, and before the car could be removed from its position, the oil flowed down the descent, through an open window, into the boiler room, and also upon some hot ashes located at the rear of the engine room and boiler house, and some eight feet distant from the car, and caught fire, whereby the mill and its contents were destroyed, and property of the value of about $107,000 consumed. After the fire and upon examination of the tank, it was discovered that it contained no valve; that it had been removed, but how or when is not disclosed by the evidence, but presumably before the tank car was filled with the oil for shipment. The evidence established that crude petroleum oil will give off a vapor or gas which will flash at a temperature of 90 degrees, igniting by contact with fire, and explosive in its ignition; that it is in common use for fuel purposes; and that it is about as volatile as turpentine. The action against the Standard Oil Company by the mill owner is predicated upon negligence in omitting to have a proper valve in the outlet of the tank. At the trial of the cause, and upon the conclusion of the evidence for the plaintiff, the court directed the jury to find a verdict in favor of the defendant.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

JENKINS Circuit Judge (after stating the facts).

Without doubt, whether a given act or omission is the proximate cause of an injury is ordinarily a question for a jury. Railroad Co. v. Kellogg, 94 U.S. 469. This, however, is subject to the well-settled rule that the court should withdraw a case from the jury, and direct a verdict, when the undisputed evidence is so conclusive that the court should set aside a verdict in opposition thereto. North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U.S. 727, 733, 8 Sup.Ct. 266; Railroad Co. v. Converse, 139 U.S. 469, 472, 11 Sup.Ct. 569; Elliott v. Railway Co. 150 U.S. 245, 14 Sup.Ct. 85; Railway Co. v. McDonald, 152 U.S. 262, 14 Sup.Ct. 619. The ruling directing a verdict upon the evidence presented by the plaintiff sanctions a review of that evidence here, to enable us to determine whether, as matter of law, upon the testimony adduced, a verdict for the plaintiff could have been sustained. Bag Co. v. Van Nortwick, 9 U.S.App. 25, 3 C.C.A. 274, 52 F. 752.

We are confronted, therefore, with certain questions, always interesting and often perplexing, touching the law of negligence,-- whether, upon the facts stated, the defendant stood in breach of duty to the plaintiff, and whether the omission to provide a valve for the discharge pipe of the tank was the proximate cause of the destruction of the plaintiff's mill.

It is not every one who suffers loss from another's negligence that may recover therefor. Negligence, to be actionable, must occur in breach of a legal duty, arising out of contract or otherwise, owing to the person sustaining the loss. Kahl v. Love, 37 N.J. Law, 5; Bank v. Ward, 100 U.S. 195. Mr. Wharton defines 'legal duty' to be 'that which the law requires to be done or forborne to a determinate person, or to the public at large, and as correlative to a right vested in such determinate person or in the public. ' Whart. Neg. Sec. 24. There was here no contractual relation between the parties. Any duty arising out of the contract was due to the gas company, not to the plaintiff. If, by reason of the shipment of the petroleum, a legal duty arose in favor of the plaintiff, it was a duty distinct and apart from the contract,-- a duty implied by law. The duty, then, upon which the plaintiff must rely, was a duty owing by the defendant to the public. The law imposes the obligation that one should so use one's property that injury should not result therefrom to another. This duty, however, is not absolute; but one is responsible for negligent use, for failure to do or forbear that which the law requires to be done or forborne in respect of the use. If the failure to provide a valve was in breach of a duty owing to the public, it must be because the character of the shipment was such and so dangerous that the defendant owed the duty to all who might in any way be brought in contact with it, to so protect and guard it that harm therefrom should come to no one. One who uses a dangerous agency does so at his peril, and must respond to the injuries thereby occasioned, nto caused by extraordinary natural occurrences, or by the interposition of strangers. Fletcher v. Rylands, L.R. 1 Exch. 265, 279, affirmed L.R. 3 H.L. 330. The books are replete with cases falling within and illustrating this principle. Thus, in Thomas v. Winchester, 6 N.Y. 397, an apothecary carelessly labeled a poison as a harmless medicine, and sent it so labeled into the market. He was held liable to all who, without fault on their part, and in consequence of the false label, were injured by its use. Norton v. Sewall, 106 Mass. 143; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154; Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350,-- are like cases.

The rule is limited, however, and justly so, to instruments and articles in their nature calculated to do injury, such as are essentially and in their elements instruments of danger; to acts that are ordinarily dangerous to life or property. Loop v. Litchfield, 42 N.Y. 351, 357. And so, where the wrongful act is not immediately dangerous to the life or property of others, the negligent party is liable only to the party with whom he contracted. Collis v. Selden, L.R. 3 C.P. 496, cited with approval in Bank v. Ward, 100 U.S. 195, 204. Thus, in Davidson v. Nichols, 11 Allen, 514, the defendant, a wholesale druggist, negligently delivered to a customer sulphide of antimony for black oxide of manganese. The purchaser, a retail druggist, delivered the package unopened to the plaintiff, both supposing the substance to be black oxide of manganese. In that belief the plaintiff proceeded to use the same in combination with chloride of potassium,-- a substance with which the oxide may be safely and properly used, but from the combination of which with sulphide...