Pettella v. UNION CARBIDE CORPORATION

• Decision Date: 01 September 1964
• Docket Number: Civ. A. No. 2892.
• Citation: 234 F. Supp. 366
• Parties: Anthony A. PETTELLA v. UNION CARBIDE CORPORATION.
• Court: U.S. District Court — District of Rhode Island

234 F. Supp. 366

Anthony A. PETTELLA v. UNION CARBIDE CORPORATION.

Civ. A. No. 2892.

United States District Court D. Rhode Island.

September 1, 1964.

John C. McOsker, Bernard F. McSally, Providence, R. I., for plaintiff.

Guy J. Wells, of Hinckley, Allen, Salisbury & Parsons, Providence, R. I., for defendant.

DAY, District Judge.

In this action the plaintiff seeks to recover for damages to his real and personal property occasioned by fire and alleged to have been caused by the negligence of the defendant. Plaintiff is a citizen of the State of Rhode Island and defendant is a corporation organized under the laws of the State of New York with its principal place of business in that state. Jurisdiction of this Court is based upon diversity of citizenship and the existence of a controversy in the requisite amount. The action was tried to the Court.

In his complaint, after alleging that on or about December 31, 1959 he purchased from a local distributor of the defendant a tank of acetylene gas which had been filled by the defendant, the plaintiff alleges "that Defendant, its servants or agents in filling said tank with gas under pressure negligently failed to use due care in tightening the fitting of said tank so that gas would not escape and in consequence thereof when on or about January 1, 1960, Plaintiff attempted with due care to light the torch attached to said tank, a large flame shot out setting fire to Plaintiff's house. The Plaintiff being at all times in the exercise of due care."

In its answer defendant denies that it was guilty of any negligence, as alleged by the plaintiff, and asserts that the alleged damages suffered by him were the consequence of his contributory negligence.

Plaintiff testified that on the way to his place of employment on December 31, 1959, he purchased said tank of acetylene gas from Corp Bros., Inc., a local distributor of the defendant's products; that he placed it in his automobile where it remained until the morning of the following day; that he then removed it from his automobile to the third floor of his home in Providence, Rhode Island, where he intended to use it to solder certain jewelry; that in preparation for its use he attached a hose with a torch to the Y valve seated in and extending above the outer surface of the top of said tank, and tightened said hose connection to said valve with a wrench; that he then struck or tapped said valve to release the gas from the tank and ignited a match to light the gas as it left the torch end of said hose; that immediately he noticed a flame about one inch high, circular in shape, around the base of said Y valve.

He further testified that he became frightened at the sight of said flame, that he left the third floor and went downstairs to tell his wife to call the fire department; that he returned to the third floor in two or three minutes and found the room where he had left said tank to be a "mass of flames". He also testified that he did not detect any odor of acetylene gas in his closed automobile where said tank had remained for more than twenty-four hours, or any such odor as he was preparing to use it.

Plaintiff presented testimony by a representative of Corp Bros., Inc. to the effect that tanks similar to that which it sold to plaintiff were obtained by it from the defendant's plant at Sudbury, Massachusetts, where said tanks were filled by the defendant. Employees of Corp Bros., Inc. would return empty tanks to the defendant and obtain full tanks which were then transported by them by truck to its local plant. These tanks were placed on racks, lying horizontally on each other, and after their arrival in Providence, Rhode Island, were stored in the warehouse of Corp Bros., Inc. until sold. He was unable to testify as to the precise date when the tank involved herein was actually obtained from the defendant. He also testified that employees of Corp Bros., Inc. loaded said filled tanks on its truck. According to his testimony, acetylene gas has a distinct, peculiar odor.

Plaintiff also offered testimony as to an experiment made with a tank similar to that purchased by the plaintiff. The witness who performed this experiment testified that when he loosened said Y valve to a point where gas...