Sarna v. American Bosch Magneto Corp.

Decision Date02 April 1935
Citation290 Mass. 340,195 N.E. 328
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Exceptions from Superior court, Hampden County; Broadhurst Judge.

Separate actions by Peter Sarna, administrator of the estate of Walter Swiatek, deceased, and by Julia Swiatek, administratrix of the estate of Joseph Swiatek, deceased, against the American Bosch Magneto Corporation were tried together. Verdict for plaintiff in the first case for $5,655, and for plaintiff in the second case for $6,220, and in each case both parties bring exceptions.

Plaintiffs' exceptions waived and defendant's exceptions overruled.

In actions for death caused by hydrogen sulphide emanating from tank dumped by defendant on another's land, instructions barring recovery if decedents were trespassers thereon held sufficiently favorable to defendant.

D. H. Keedy, E. S. Searle, and S.W. Weltman, all of Springfield, for plaintiffs.

E. W. Sawyer, of Boston, and R. S. Spooner, of Springfield, for defendant.

QUA Justice.

As these actions now stand, each plaintiff seeks to recover for the death of his intestate alleged to have been caused by negligence of the defendant. Joseph Swiatek was the father of Walter Swiatek. There was ample evidence from which it could have been found that both intestates were killed at approximately the same moment by inhalation of hydrogen sulphide gas at or near the bottom of a deep ravine with precipitous sides located three hundred feet or more in the rear of the house where they lived. From the position of the bodies, the defendant contended that death occurred while the deceased persons were on land of one Lemieux. The defendant cannot be harmed if we assume that such was the fact as to both father and son. It could have been found that the gas came from an old steel tank which some days before the accident had been dumped by the defendant with other refuse from its plant down the steep side of the ravine and which had eventually found its way to the bottom, where it was observed immediately after the accident with the brass valve freshly broken off. The jury found for the plaintiff in each case.

1. There was evidence of the defendant's negligence, part of which may be summarized as follows: Hydrogen sulphide is exceedingly poisonous, even when diluted to less than one part of gas to a thousand parts of air. It can be smelled in dilutions of less than one part to a million. It can, if suddenly released, cause death in the open air, where, being heavier than air, it tends to form a blanket over the ground, especially at the bottom of a ravine. It is under high pressure in the tank and escapes quickly if an opening is made. About five years before the accident the defendant had used hydrogen sulphide in some experiments conducted by its chemist at its plant. The gas had come in one or more tanks similar to that dumped into the ravine. According to one witness, this particular tank had been in the defendant's yard for ‘ several years.’ It was in the place used for scrap iron and steel. It was badly corroded and slightly cracked and looked as if it had leaked and then corroded over. It had emitted a bad odor for some time before the defendant's foreman ordered it removed to a dump. The defendant's employee who dumped the tank and selected the place where it should be put knew that there were people about the dump and that they would examine the tank, ‘ paw it over’ and perhaps attempt to salvage and use it. In view of the highly dangerous character of the contents of the tank and of the knowledge which the jury could infer the defendant, through its chemist, had or ought to have had as to the nature of its contents, the condition of the tank itself and the likelihood that the highly compressed gas would be released at some time in some manner, the jury could say the defendant was negligent in not taking necessary steps to render the tank harmless before abandoning it in a place where it might have been anticipated that others would be injured or killed by it. Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N.E. 235; Leahy v. Standard Oil Co. of New York, 224 Mass. 352, 112 N.E. 950; Goupiel v. Grand Trunk Railway Co., 94 Vt. 337, 111 A. 346; Juntti v. Oliver Iron Mining Co., 119 Minn. 518, 138 N.W. 673,42 L.R.A. (N. S.) 840. This case is analogous to that large number of cases in which a manufacturer placing an inherently dangerous article on the market without warning of its nature has been held liable to a remote purchaser. See, for example, Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Farley v. Edward E. Tower Co., 271 Mass. 230, 171 N.E. 639, 86 A.L.R. 941. In principle it makes no difference whether the dangerous article is started on its way toward contact with the injured person by sale or by depositing it in some frequented spot.

It was not necessary for the plaintiff to show that some one agent or employee of the defendant was cognizant of all the facts necessary to establish that he as an individual was negligent. The defendant is chargeable with the combined knowledge which all its agents acquired within the scope of their authority together with legitimate inferences from all the evidence. Browning v. Fidelity Trust Co. (C. C. A.) 250 F. 321, 324; Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677. See New England Trust Co. v. Bright, 274 Mass. 407, 412, 174 N.E. 469, 73 A.L.R. 416.

2. What has just been said and the cases cited above go far to show that there was no error in allowing the jury to infer that there was a causal connection between negligence of the defendant and the deaths of the plaintiffs' intestates. The broken valve was the only evidence of any intervening act of any third person, but if that shows that there was such act, even if it was the act of one of the deceased persons (see Akin v. Bradone Engineering & Machinery Co., 48 Wash. 97, 92 P. 903,14 L.R.A. (N. S.) 586), it was only what might have been expected as a result of leaving the tank in a place where there was dumping and where numerous people came to salvage brass and other old metals (Lane v. Atlantic Works, 111 Mass. 136; Leahy v. Standard Oil Co. of New York, 224 Mass. 352, 112 N.E. 950; Teasdale v. Beacon Oil Co., 266 Mass. 25, 164 N.E. 612; Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N.E. 235). The case is distinguishable from cases like Horan v. Inhabitants of Watertown, 217 Mass. 185, 104 N.E. 464, where it was held there was nothing to indicate the probability of injury, and from cases like McGuiness v. Butler, 159 Mass. 233, 34 N.E. 259, 38 Am.St.Rep. 412, and Falardeau v. Malden & Melrose Gas Light Co., 275 Mass. 196, 175 N.E. 471, where the plaintiff was injured as a direct consequence of a trespass by himself against property of the defendant. At the time of the accident, the tank had ceased to be the defendant's property, because the defendant had abandoned it. Welch v. McNeil, 214 Mass. 402, 406, 101 N.E. 985; Burroughs v. Pacific Telephone & Telegraph Co., 109 Or. 404, 220 P. 152; Fidelity-Philadelphia Trust Co. v. Lehigh Valley Coal Co., 294 Pa. 47, 55, 143 A. 474.

3. The question of contributory negligence on the part of the plaintiffs' intestates was for the jury. There was no evidence...

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