Standard Oil Co. of New York v. R.L. Pitcher Co.

• Decision Date: 21 May 1923
• Docket Number: 1588,1589.
• Citation: 289 F. 678
• Parties: STANDARD OIL CO. OF NEW YORK v. R. L. PITCHER CO. SAME v. BRIGGS HARDWARE CO.
• Court: U.S. Court of Appeals — First Circuit

289 F. 678

STANDARD OIL CO. OF NEW YORK v. R. L. PITCHER CO.

SAME v. BRIGGS HARDWARE CO.

Nos. 1588, 1589.

United States Court of Appeals, First Circuit.

May 21, 1923

[Copyrighted Material Omitted]

Arthur S. Littlefield, of Portland, Me. (Nathan W. Thompson, of Portland, Me., on the brief), for plaintiff in error.

W. T Gardiner, of Augusta, Me.(Andrews, Nelson & Gardiner, of Augusta, Me., on the brief), for defendants in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

These are negligence cases based upon the same facts, except as to damage.They were tried together in the District Court of Maine and a verdict for the plaintiff was returned in each.

For convenience the parties will be designated herein as they were below.

The defendant maintained a gasoline filling station at Caribou in the state of Maine, at which gasoline delivery automobile trucks were loaded.Each of the plaintiffs was the owner of certain personal property stored in a storehouse within a short distance of the defendant's filling station.

The declaration alleged that on May 31, 1920, as one of the automobile delivery trucks of the defendant was being loaded with gasoline from the tank at this station, the flow of gasoline through the iron pipe by which it entered the tank generated static electricity; that an electric spark ignited the gasoline vapor, and a stream of burning gasoline spread to the storehouse in which the goods of the plaintiffs were stored, setting it on fire and destroying or damaging the plaintiffs' goods; that previous to this day the defendant had used a safety chain, which extended from the feed pipe on the storage tank into the tank of the automobile delivery truck and conducted to the ground any static electricity which was generated by the flow of gasoline; that upon the day in question the safety chain was not used; and that, because of the negligence of the defendant in failing to use it, the delivery truck which was being filled became charged with static electricity, and an electric spark ignited the gasoline vapor in the tank of the delivery truck.

The errors assigned are the refusal to direct a verdict for the defendant at the conclusion of all the evidence, incorrect instructions, and the exclusion and admission of certain testimony.

In support of the first assignment of error, the defendant strenuously contends that there was no evidence upon which the jury could base a verdict for the plaintiffs, because there was no evidence as to the origin of the fire, and they could infer negligence of the defendant from other inferences only, and not from proven facts.

The evidence was undisputed that previous to the day in question the defendant had used a safety chain for three years; that it had become broken and was discarded; that upon this day, immediately before the attempt was made to fill the delivery truck which was set on fire, another was filled from the same tank without the use of the chain, and with no disastrous results; and it was claimed that the delivery truck itself was sufficiently grounded through its wet wooden spokes and the chains which were used upon the tires; that the ground was wet and muddy, and that therefore the tank itself, in its then condition, was a good conductor without the safety chain.

The defendant also contended that frictional or static electricity could not be generated by the flow of gasoline through a metallic pipe, and that the filling pipe, resting upon the edge of the opening into the gasoline tank and pressed firmly against its edge by its weight, furnished a good conductor and would offer no opportunity for the creation of a spark.These contentions were supported by the testimony of experts.

The plaintiffs introduced evidence tending to prove that static electricity could be developed in this way, and that a spark would be caused by the vibration of the pipe upon the edge of the manhole of the delivery truck as the gasoline flowed through it under pressure, and that the safety chain or some other device should have been used for grounding the delivery truck.

Walter L. Wedger, for 13 years state expert on explosives for the state of Massachusetts, testified that he had made a study of the generation of static electricity by gasoline friction, and that it could be developed by the flow of gasoline through a metallic pipe; that if there is a good conductor the electricity so developed will be conducted off as fast as it is generated, but that if it is not it will accumulate; and that, if there is a gap in the connection between the pipe through which the gasoline is flowing and the tank into which it flows, a spark will be created, which will set fire to the gasoline vapor.He testified that he had investigated several hundred fires caused by gasoline and had determined these facts by experiments.

In answer to a hypothetical question he testified that in his opinion static electricity was the cause of the ignition of the gasoline vapor in this case, and that the safety chain would have conducted it away.The chain, when in use, was connected with the filling pipe at some distance back from where it entered the manhole of a delivery truck and extended down through the manhole into the tank, thus furnishing a metallic connection through which the static electricity which might accumulate in the tank could be conducted to the ground.

Mr. Wedger also testified that it was necessary for safety that such a ground connection be made and that it was required by the police and fire departments of Massachusetts when delivery tanks were being filled with gasoline.

Whether the metallic automobile delivery tank itself, because of its metallic body and wooden wheels with rubber tires, constituted a ground, was one of the questions upon which the evidence was contradictory.

The defendant introduced testimony tending to show that the wheels of the automobile tank had chains upon them, that they were wet and covered with mud, and that the wheels themselves sat in a rut in which there was mud and that a good connection was thus established by which any static electricity which might have been generated within the tank would be conducted to the ground.

On the other hand, there was testimony that there had been no rain upon the day in question, nor upon the previous day, and that an examination of the automobile truck immediately after the accident showed that there were no chains upon the wheels.

Plaintiffs' expert admitted that, if the automobile truck was grounded, there would be no accumulation of static electricity.Upon the important question of whether it was grounded or not, there was conflicting testimony.

The filling pipe had upon its outer end a sleeve made of some sheet metal which was one-half inch larger than the pipe, according to the estimate of one witness.This sleeve had a crook in it, which was so adjusted that it could be pulled out to the desired length to reach the manhole of an automobile truck.This filling pipe was connected by a swivel joint with a pipe which led back to the storage tank, and while the defendant introduced testimony tending to show that the pipe, when it was pulled down to be used for filling an automobile truck, had such a loose connection at the swivel joint that it fell down of its own weight and rested on the edge of the manhole, there was testimony on the part of the plaintiffs that the joint was stiff, and a picture, introduced at the trial, showed the pipe, stationary within a foot of the top of the manhole of the delivery truck.

While there was evidence that the pipe rested upon one edge of the manhole and that the sleeve of galvanized iron, on which was the crook, after it was inserted into the manhole, was pressed against the opposite side, there was evidence that when the gasoline flowing, under pressure, escaped from the pipe into the enlarged sleeve, it caused the sleeve and pipe to vibrate, thus furnishing a gap which would cause an electric spark, and also that the iron pipe and the sleeve were exposed to the air and were likely to become rusted.In connection with this the expert for the plaintiff testified as follows; it having appeared that the pipe was exposed to the air at least nine...