Standard Oh v. Wakefield's Adm'r

• Decision Date: 16 June 1904
• Citation: 47 S.E. 830,102 Va. 824
• Court: Virginia Supreme Court
• Parties: STANDARD OH, CO. v. WAKEFIELD'S ADM'R.

47 S.E. 830

102 Va. 824

STANDARD OH, CO.

v.WAKEFIELD'S ADM'R.

Supreme Court of Appeals of Virginia.

June 16, 1904.

DEATH — DAMAGES — TOETS—USE OF DANGEROUS ARTICLE — CONTRACT RELATIONS — GAS NAPHTHA — EXPLOSION—PROXIMATE CAUSE— INTERVENING ACT — HARMLESS ERROR — EVIDENCE — SUFFICIENCY — CORPORATIONS — AGENTS—-NOTICE.

1. Gas naphtha being a dangerous article, a company shipping a tank of it to a city was liable for the death of a city employ!, caused, while attempting to unload the tank, by the negligent manner said company had closed the discharge pipe of the tank.

¶ 1. See Explosives, vol. 23, Cent. Dig. g§ 4, 5.

2. Defendant's negligence in failing to close a valve in the discharge pipe of a tank of gas naphtha which it shipped to a city was the proximate cause of the death of a city employe occurring from an explosion on the intervening act of the city in removing the cap from the pipe in an attempt to unload the tank in the ordinary manner.

3. Where a city employe was killed while attempting to unload gas naphtha shipped to the city, any error, in certain counts of a petition therefor against the shipper, in failing to allege that plaintiff's decedent was an employe of the city, was harmless in view of evidence proving that fact.

4. In an action for the death of plaintiff's decedent from an explosion occurring while he was attempting to unload a tank of gas naphtha shipped by defendant, evidence examined, and held that the question of contributory negligence was for the jury.

5. Evidence that the agent of a corporation engaged in selling oil supervised the filling of the tank cars for delivery to purchasers, and had been at the gasworks of one of its purchasers one or more times under an understanding with such purchaser to notify the corporation's employes when assistance was needed in unloading leaking tanks, and knew or had opportunity of knowing the conditions under which the tanks were there unloaded, tended to sustain the hypothesis of an instruction treating his knowledge as notice to the corporation.

Error to Law and Equity Court of Richmond.

Action by Wakefield's administrator against the Standard Oil Company for damages for the death of plaintiff's decedent. Judgment for plaintiff, and defendant brings error. Affirmed.

Munford, Hunton, Williams & Anderson, for plaintiff in error.

Meredith & Cocke and H. R. Pollard, for defendant in error.

BUCHANAN, J. On or about the 23d day of December, 1901, the Standard Oil Com pany shipped in a tank car about 8, 000 gallons of gas naphtha from Manchester, and delivered the same on the gasworks siding of the Chesapeake & Ohio Railway Com| pany in the city of Richmond, under a contract with that city, for use in its gas plant. The tank cars used for delivering the naphtha were provided by the Standard Oil Company. Each had a discharge pipe in the bottom of the tank some 4 inches in diameter, and projecting 10 or 12 inches below the bottom. The pipe was threaded to receive and upon it was a cap screw. Upon the upper part of the pipe is a valve to prevent the escape of naphtha. In the lower part of the valve there are concaves which permit the naphtha to flow when the valve is raised. An inflexible iron rod is attached to the valve, and extends to or near the top of the tank. Near the upper end of the rod is a coil wire spring, arranged to hold the rod down and to keep the valve in position when closing the discharge pipe. The iron rod near the top has an arm attached to it, by using which the pressure of the spring can be relieved and the valve raised so that the naphtha can enter the discharge pipe. The arm for raising the valve is fastened to the rod by an iron key passing through both. The rod and its attachments are covered by the dome of the car, on the top of which is a slide or manhole large enough for a man to get inside the car. The oil is unloaded through the discharge pipe by unscrewing the cap on its lower end and connecting the discharge pipe by a union with a pipe leading to the tanks of the city gasworks. When this union or connection has been made, the valve is raised by means of the arm keyed to the rod, and the naphtha permitted to flow into the city tank. The place for unloading tank cars was on a trestle 20 or 25 feet above the ground in the yard of the gasworks of the city, where for a number of years they had been delivered for that purpose. Under the trestle there was a large opening, the beginning of a sewer, which ran into and across the yard of the gasworks. After entering the yard, the sewer, being partly open and partly closed, ran alongside the engine room and the building in which the furnaces and retorts for making gas were situated.

On the day the car in question was delivered, the foreman of the lower gasworks of the city directed McCauley, one of its employes, who alone, or with another of its employes, generally did this work, to unload the car. When McCauley commenced to unscrew the cap on the end of the discharge pipe he saw a little naphtha. He turned the cap a little more, and, seeing the naphtha coming a little freer, he shut it up, and reported to the foreman that there was a leak, and that he could not make the connection by himself. The foreman thereupon directed him to get Mr. Wakefield, the plaintiff's intestate, to go with him and make the connection. When they reached the car, they undertook to make the connection in the usualway, Wakefield unscrewing the cap and McCauley connecting the pipes; but when the cap came off the naphtha came out with such force that both of them were unable to make the connection. McCauley jumped from under the car and went on top of it, removed the seal placed upon the plate covering the manhole, and swung it to one side for the purpose of forcing the valve down so as to stop the flow of naphtha. He then saw that the valve was out of order—that it was keyed improperly—and that he could do nothing with it. He at once jumped off the car and rushed to the office of the foreman, some 75 yards distant, and informed him that the valve was not in place, and was out of order, and that all the naphtha was escaping. They rushed back together, but just as they reached the trestle and car there was an explosion, which killed Wakefield, who was still under the car, attempting to save the naphtha. The explosion was caused by the gas from the naphtha coming into contact with the fire of the gashouse retorts as the naphtha flowed near by in the sewer, partly open and partly closed, leading from the trestle by the gashouse to the creek.

Upon examination the day after the accident it was ascertained that the key used for fastening the handle to the rod by which the valve was raised was under the bottom of the valve, holding it about three-fourths of an inch above the top of the discharge pipe, and that the handle was fastened to the rod by a piece of bent wire.

Wakefield's personal representative instituted her action on the case against the Standard Oil Company and the city of Richmond to recover damages for negligently causing the death of her intestate. Both defendants appeared and made defense. The trial resulted in a verdict and judgment in favor of the plaintiff against the Standard Oil Company. To that judgment the oil company obtained this writ of error.

The oil company denies its liability upon three grounds:

(1) That it did not owe to Wakefield the duty of keeping the valve in the car in a reasonably safe condition, and was not, therefore, guilty of negligence as to him.

(2) That the condition of the valve, even if the oil company were negligent, was not the proximate cause of his death.

(3) That, if it was, he was guilty of contributory negligence.

As to the first ground of defense: The contention of the oil company is that, in order for negligence to be actionable, it must occur in a breach of legal duty arising out of contract or otherwise, owing to the person unloading the cars; that there was no contractual relation existing between the plaintiff's intestate and the oil company; and that, this being so, the only duty upon which the plaintiff could rely was the duty owing to the public by the oil company, and that the character of the shipment was not so dangerous as to make a failure to properly ad just the valve to prevent the escape of the naphtha a breach of duty to a third person who might suffer injury resulting from' such failure.

It seems to be a well-settled rule of the common law that a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured who is not himself at fault. The liability does not depend upon privity of contract between the parties to the action, but on the duty of every man to so use his own property as not to injure the persons or property of others. Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682.

Whether this rule of the common law is applicable only, as the counsel of the oil company insists, to such agencies as are essentially and in their elements instruments of danger to life and property, may be doubted. Pollock, in his work on Torts (6th Ed.) p. —, says that "gas (the ordinary illuminating gas) is not of itself perhaps a dangerous thing, but, with atmospheric air, forms a highly dangerous explosive mixture, and also makes the mixed air incapable of supporting life. Persons undertaking to deal with it are therefore bound at all events to use all reasonable diligence to prevent an escape which may have such results. A gas fitter left an imperfectly connected pipe in the place where he was working under a contract with the occupier. A third person, a servant of that occupier, entering the room with a light, in the fulfillment of his ordinary...