Johnson v. Kosmos Portland Cement Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: MOORMAN, HICKS, and SIMONS, Circuit
• Citation: Johnson v. Kosmos Portland Cement Co., 64 F.2d 193, 1933 A.M.C. 1023 (6th Cir. 1933)
• Decision Date: 17 March 1933
• Docket Number: No. 6079,6080.,6079
• Parties: JOHNSON et al. v. KOSMOS PORTLAND CEMENT CO. SAUER et al. v. SAME.

64 F.2d 193 (1933)

JOHNSON et al. v. KOSMOS PORTLAND CEMENT CO.

SAUER et al. v. SAME.

Nos. 6079, 6080.

Circuit Court of Appeals, Sixth Circuit.

March 17, 1933.

Harris W. Coleman, of Louisville, Ky. (Trabue, Doolan, Helm & Helm, of Louisville, Ky., on the brief), for appellants.

Louis Seelbach, of Louisville, Ky. (George W. Norton, Jr., and Crawford, Middleton, Milner & Seelbach, all of Louisville, Ky., on the brief), for appellees.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

On August 3, 1929, a 750-ton combination oil and rock barge belonging to the cement company was tied to a dock on the Ohio river near Kosmosdale, Ky., during a thunder storm. An explosion occurred, killing every one on board, including Wilberding, for whose estate appellant Johnson is administrator, and Sauer, for whose estate appellant Rose Sauer, his widow, is executrix. Appellants Johnson and Sauer seek to recover under the Kentucky death statute, section 6, Ky. St. 1930, which provides for the survival to personal representatives of the deceased of causes of action for wrongful death. The suits are by libels in personam brought in admiralty, in reliance upon the rule that, where a state statute allows an action for wrongful death, it will be read into and allowed to supplement the general admiralty law. Appellant Kleinsteuber joins as libelant, and seeks to recover compensation paid by him as an employer of the deceased under the Longshoremen's and Harbor Workers' Compensation Act § 33, title 33, § 933, U. S. C. (33 USCA § 933), which provides that payment of compensation shall operate as an assignment to the employer of all rights to recover damages against third persons. The Travelers Insurance Company, appellant, was the insurer of Kleinsteuber.

The respondent cement company had engaged Kleinsteuber, doing business as the Kleinsteuber Boiler Works, to make some alterations on the barge. Sauer and Wilberding were in the employ of Kleinsteuber, and were performing such work as was assigned to them by the cement company under instructions of its vice president and general manager. The libels allege that the explosion was caused by the negligence of the respondent in failing to use reasonable care to provide the deceased with a safe place in which to work, in that respondent, after having used the barge for oil, failed properly to clean out its hold so as to prevent the generation of gases. The record discloses certain accepted methods for removal of gases under such circumstances. They are, first, to scrape the sides of the tank and remove all oil possible, then to exclude the gases by filling the hold with water or steam. None of these things was done.

The court below found that the respondent had failed to use reasonable care in such respect, and that explosion of the gases caused the death of the decedents. The respondent took no exception to such findings, and does not appeal. The court further found that the gases which had accumulated in the barge were not set off and exploded by the acetylene torch referred to in the evidence but by a lightning bolt which struck the barge, and that the striking of the barge by lightning, and the explosion of the gases therein as a result thereof, was not such a natural and probable consequence of leaving the gases in the barge as should have reasonably been anticipated by the respondent at the time it permitted decedents to begin work on the barge, and that libelants could not recover. The latter findings were excepted to by the libelants, and form the bases of these appeals.

The question therefore presented, upon which decision must rest, is whether the negligence of the respondent was a proximate cause of the death of Wilberding and Sauer.

It is the rule in this and other circuits that while an appeal in admiralty is a trial de novo, the findings of the District Court will be accepted unless clearly against the preponderance of evidence. The William A. Paine, 39 F.(2d) 586 (C. C. A. 6); The Perseus 272 F. 633 (C. C. A. 6); Drowne v. G. L. Transit Corporation, 5 F.(2d) 58 (C. C. A. 2); Shepard v. Reed, 26 F.(2d) 19 (C. C. A. 6). It is urged upon us that the finding below upon the question of causation is a finding of fact, and should not be disturbed if supported by substantial evidence. We do not recognize it as such. The finding that the explosion was the result of the lightning is undoubtedly one of fact; but the question of liability is a mixed question of law and fact. While the proximate cause of an injury is said ordinarily to be a question for the jury, Milwaukee, etc., Railway v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256, this must be upon the assumption that the jury will apply the applicable law of proximate cause given it by the court, the correctness of which, upon exceptions reserved, can be examined and tested upon review. Where, as here, the finding is of an ultimate fact, and the law applied reposes in the mind of the court, it must be clear that the finding is at least a mixed finding of law and fact, as to which no presumption of correctness obtains.

In respect to proximate cause, the United States Supreme Court, in Milwaukee, etc., Railway v. Kellogg, supra, page 475 of 94 U. S., said: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." And again, "But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating which produced the injury."

Tested by these rules, we cannot fail to recognize the unbroken connection between the alleged wrongful act and the injury. The wrongful act or omission consisted in permitting the gases to remain in the barge. It was the explosion of the gases which produced the injuries. We escape here the usual difficulty which is inherent whenever a succession of events is relied upon, and where the problem is to determine whether they are so linked and continuous as to form an unbroken chain of causation. But difficulty remains. The primary cause, negligence, was not self-operating. Had there been no lightning, conceivably there would have been no explosion. Was the secondary cause, the lightning, the sole proximate cause of the disaster? Certainly the lightning was not in any sense dependent upon the original wrong, nor a force put in motion by it, or in response to its stimulus. But while disconnected from the primary cause, it likewise was not self-operating. Had there been no accumulation of gases, whatever might have been the result of the lightning, the explosion would not have occurred. We have here, then, no intermediate or intervening efficient cause operating between the wrong and the injury, and so destroying the causal relation of the former to the latter, but rather two concurring causes, neither self-operating, yet together efficient in bringing about the catastrophe here described.

But the fact that injury is the natural consequence of negligence is not enough; it must also be its foreseeable consequence. There is no actionable liability for an alleged negligent act, unless injury resulting therefrom could reasonably have been foreseen in the light of the attending circumstances. Indeed it may be said that, in the absence of wanton wrong or failure to conform to some arbitrary or absolute standard of care, "foreseeability" is a necessary test of the existence of negligence, and, if no injury can reasonably be expected to result, there is no negligence.¹ We need carry this inquiry no further than to note, for its bearing upon subsequent discussion, that danger in permitting explosive gases to remain in the barge was obvious to the court below, and that in a sense, at least, reasonable expectation of injury was implied in its finding of negligence.

Reasonable apprehension of the danger of injury constituting the criterion of liability, whether the question be one of negligence or causation, is it a prerequisite to liability that the respondent should have foreseen the precise manner in which the injurious result was brought about, or is it sufficient to impose liability upon it if a generally injurious result should have been foreseen as reasonably probable in the light of the attending circumstances? If the former, it is argued that the ignition of explosive gases in the hold of a barge by lightning is so extraordinary, and so unprecedented an event, as not to be reasonably anticipated as a probable consequence of the alleged wrongful act or omission. Even were the rule relied upon the true rule, we are not certain of the soundness of this conclusion. The manifestations and effect of natural forces and conditions are to be taken into account in regarding the probable consequences of a negligent act, including the force and direction of the wind (Milwaukee Railway v. Kellogg, supra), wind and tide (The Santa Rita, 176 F. 890, 30 L. R. A. (N. S.) 1210 C. C. A. 9), drought (Anderson v. M., St. P. & S. S. Ry., 146 Minn. 430, 179 N. W. 45), lightning (Brown v. West Riverside Coal Co., 143 Iowa, 662, 120 N. W. 732, 28 L. R. A. (N. S.) 1260), flood (Vyse v. C., B. & I. Ry. Co., 126 Iowa, 90, 101 N. W. 736), snowfall (Morrison v....