RePub. of France v. Lehigh Valley R. Co.

• Decision Date: 07 June 1921
• Citation: 114 A. 242
• Parties: REPUBLIC OF FRANCE v. LEHIGH VALLEY R. CO. KING OF UNITED KINGDOM OF GREAT BRITAIN AND IRELAND v. SAME. ÆTNA EXPLOSIVES CO. Inc., v. SAME.
• Court: New Jersey Supreme Court

114 A. 242

REPUBLIC OF FRANCE

v. LEHIGH VALLEY R. CO.

KING OF UNITED KINGDOM OF GREAT BRITAIN AND IRELAND

v. SAME.

ÆTNA EXPLOSIVES CO. Inc.,

v. SAME.

Supreme Court of New Jersey.

June 7, 1921.

Actions by the Republic of France, the King of the United Kingdom of Great Britain and Ireland, and the Ætna Explosives Company, Incorporated, respectively, against the Lehigh Valley Railroad Company. On rules to show cause allowed plaintiffs on verdicts against them on certain items. Rules discharged.

Argued November term, 1920, before SWAYZE, PARKER, and BLACK, JJ.

M. M. Stallman, of Newark, and Edwin F. Smith, of Jersey City, for plaintiffs.

Collins & Corbin, of Jersey City (George S. Hobart, of Newark, and Nash Rockwood, Charles T. Lark, Richard W. Barrett, and Edgar H. Boles, all of New York City, on the brief), for defendant.

SWAYZE, J. The three actions involved in these rules grow out of the same explosion involved in N. J. Fid., etc., Ins. Co. v. Lehigh Valley Railroad Co., 92 N. J. Law, 467, 105 Atl. 206.

Part of the claim of the republic of France was for benzol and wet gun cotton in railroad cars on the Lehigh Valley dock. For this the jury rendered a verdict in favor of France, and the defendant does not now question that verdict.

Part of the claim of France was for wet gun cotton in railroad cars on the Central Railroad dock; part for picric acid, N. C. powder, and cannon powder in cars on the barge Rockwell.

The claim of the king of Great Britain was for smokeless powder on barges.

The claim of the Ætna Explosives Company was for smokeless powder on a barge. For these two parts of the claim of France and for the claims of Great Britain and the Æna Explosives Company the verdicts were in favor of the defendant. The question is whether the rules allowed the plaintiffs on these verdicts shall be discharged or made absolute.

First as to the verdict in the case of the gun cotton in railroad cars on the Central Railroad dock. It is urged in behalf of the plaintiff against this verdict that, if the jury was right in finding in favor of France for the benzol and wet gun cotton on the Lehigh Valley dock, it must logically have found negligence with reference to the gun cotton on the Central Railroad dock. This argument overlooks the fact that there was an element of negligence as to these explosives that was not present in the case of the other explosives belonging to France. One of the causes of negligence alleged was the failure to provide adequate facilities and proper measures and precautions, both before and after the fire started, for removing and isolating cars which caught fire and cars loaded with dangerous explosives likely to explode in or near which fire might be discovered. We agree with the defendant that under a charge permitting recovery for negligence thus characterized the jury might properly find that there was no negligence on the part of the Lehigh Valley Railroad Company, so far as concerned the starting of the fire, and yet may have properly found that there was negligence after the fire started in removing or isolating cars on its dock. As counsel for the defendant properly argues, this theory of liability is not applicable to cars standing on the Central Railroad dock, with which the Lehigh Valley had nothing to do. We see no reason why we should interfere with that finding. That disposes of the rule in the case of France.

2. The question as to the liability in the case of Great Britain and the iEtna Explosives Company is more difficult. The trial judge charged:

"Negligence is the omission to perform a duty which is owing by the defendant to the plaintiff, so that in order that there may be negligence there must be duty, and that brings us to consider just for a moment a very important contention made in this case, and that contention is this: What was the duty which these barges—scows—occupied at the time of the happening of this catastrophe? Were they trespassers, were they licensees, or were they on the public highway, where they had a right to be?"

He charged that, if they were on the public highway (by which he meant the navigable waters of the New York Bay), there was a duty; that ...