Roscigno v. Colonial Beacon Oil Co.

• Citation: 200 N.E. 883,294 Mass. 234
• Parties: ROSCIGNO v. COLONIAL BEACON OIL CO.
• Decision Date: 02 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 234

200 N.E. 883

ROSCIGNO

v.COLONIAL BEACON OIL CO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1936.

Report from Superior Court, Middlesex County; Collins, Judge.

Action of tort by Mary Roscigno against the Colonial Beacon Oil Company. The case was heard without a jury. On report after finding for defendant.

Judgment for defendant on the finding.

F. D. Harrigan, of Boston, for plaintiff.

T. H. Calhoun and E. J. Sullivan, both of Boston, for defendant.

LUMMUS, Justice.

On February 10, 1928, the plaintiff sustained personal injuries from the explosion of a vaporizer tank in the oil storage and refining plant of the defendant, more than a quarter of a mile away from the plaintiff's house. The same explosion resulted in the case of Anderson v. Beacon Oil Co., 281 Mass. 108, 183 N.E. 152.

In the case at bar, an action of tort for alleged negligence, there was no evidence of specific negligence, and the only question is whether res ipsa loquitur. If it does, the burden of proof of negligence remains on the plaintiff (Fitzmaurice v. Boston, Revere Beach & Lynn Railroad Co., 256 Mass. 217, 218, 152 N.E. 239;Gilchrist v. Boston Elevated Railway Co., 272 Mass. 346, 352, 353, 172 N.E. 349), and the tribunal of fact is never required to conclude that there was negligence, by dint of technical presumption (Brown v. Henderson, 285 Mass. 192, 189 N.E. 41) or treatment of the occurrence as prima facie evidence within the definition of that expression in Haun v. LeGrand, 268 Mass. 582, 168 N.E. 180, and Thomes v. Meyer Store, Inc., 268 Mass. 587, 168 N.E. 178. The rule of res ipsa loquitur merely permits the tribunal of fact, if it sees fit, in the absence of a finding of the specific cause of the occurrence (Cook v. Newhall, 213 Mass. 392, 395 et seq., 101 N.E. 72;Gilchrist v. Boston Elevated Railway Co., 272 Mass. 346, 352, 353, 172 N.E. 349), to infer from the occurence itself that it would not have happened unless in some respect the defendant had been negligent (Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61;Poole v. Boston & Maine Railroad, 216 Mass. 12, 17, 18, 102 N.E. 918;Gilchrist v. Boston Elevated Railway Co., 272 Mass. 346, 352, 353, 172 N.E. 349;Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905;Glowacki v. North Western Ohio Railway & Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486, and note. Winslow v. Tibbetts, 131 Me. 318, 322, 162 A. 785).

The plant was enclosed by a fence, and was not open to the public. This exclusiveness of control satisfies one requirement of the rule. McNamara v. Boston & Maine Railroad Co., 202 Mass. 491, 499, 89 N.E. 131;Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 425, 180 N.E. 212, 83 A.L.R. 329;Lynch v. New York, New Haven & Hartford Railroad Co. (Mass.) 200 N.E. 877. The process employed by the defendant was patented, had been in use since 1920, and in one hundred sixty-seven plants throughout the world had resulted in no other explosion.

In 1890 it was held in New York that the rule of res ipsa loquitur could not be applied to an explosion in an oil refinery. Cosulich v. Standard Oil Co. of New York, 122 N.Y. 118, 25 N.E. 259,19 Am.St.Rep. 475. Conceivably progress in the art might have made indicative of negligence a similar explosion in 1928. Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 426, 180 N.E. 212, 83 A.L.R. 329. But in order to make applicable the rule of res ipsa loquitur, the tribunal of fact must be able to find, either by expert evidence (as in ...