Moeckel v. C.A. Cross & Co., Inc.
| Decision Date | 13 January 1906 |
| Citation | 76 N.E. 447,190 Mass. 280 |
| Parties | MOECKEL v. C. A. CROSS & CO., Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. E Tupper, for plaintiff.
Chas F. Baker and Walter P. Hall, for defendant.
This is an action of tort for injuries occasioned to certain greenhouses occupied by the plaintiff, and to plants and flowers therein, from an explosion upon the premises of the defendant on March 21, 1904. The declaration in one count alleged negligence, and in the other the maintenance of a nuisance. In the superior court the jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the refusal of the presiding judge to give certain rulings requested. There is no exception to any part of the charge. The rulings requested were as follows:
The first request clearly could not have been given. There was evidence in the case that the defendant was maintaining a building upon its land for the storage or keeping of two of the products of crude petroleum, namely, gasoline and kerosene, without a license, in violation of the provisions of the Rev. Laws, c. 102, § 114, and that an explosion took place. The building in which the explosion took place was 60 feet long by 30 feet wide. It was authorized to be built by the mayor and aldermen of Fitchburg in September, 1901, for the storage of oil. By the terms of the license it was to be 500 feet from any dwelling house, and the tanks were to be located outside the storehouse. This license, by the terms of Rev. Laws, c. 102, § 114, was to continue only until 'the 1st of April next succeeding the date thereof.' The license was not renewed, nor was the building 'properly ventilated,' as required by section 113 of the same chapter, as it was not ventilated at all. The exceptions state that in the rear of the building were three large iron tanks which were not inclosed by any building or in any way covered; that at the south end of the building a small room was partitioned off, which was used for gluing barrels. There was a boiler in the small room, in which a fire was built whenever gluing was done. The two rooms were connected by a door which closed automatically when opened. The iron tanks were used to keep kerosene and gasoline, and were fitted with pipes running to the large filling room in the building, through which pipes the oil was drawn from the tanks.
There was evidence that the defendant's servant was engaged in gluing barrels on the morning of the accident; that the door which closed automatically was hung on trucks at the top, and was not stable at the bottom, and would swing out from the bottom. There was also evidence that the method of filling the barrels with gasoline was through an automatic faucet, which shut off with a spring; that it did not always snap off, and then it would run over. It further appeared that there was a lamp used for heating glue, which generally was kept lighted; and that there was always a strong smell of gasoline and kerosene about the room, and 'a good many feet from it.' In the explosion the defendant's servant was killed, and close to his body was found the body of a man not an employé of the defendant. The defendant contends that this man might have caused the explosion; but there is no evidence of this, and the jury were warranted in finding both that the defendant was maintaining a nuisance and was carrying on the business in a negligent manner.
With this subject may be considered the fifth request. There was evidence that usually some filled barrels of kerosene were kept in the filling room, but not very much gasoline--sometimes not any. There was evidence that gasoline is a product of crude petroleum, but there was no direct evidence that kerosene is such a product; and the defendant seriously makes this point in his brief. This, however, is a matter of common knowledge. This request was rightly refused. That a person carrying...
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