Standard Oil Company v. Tierney
| Decision Date | 10 December 1891 |
| Citation | 92 Ky. 367 |
| Parties | Standard Oil Company v. Tierney. |
| Court | Kentucky Court of Appeals |
In April, of the year 1888, the Standard Oil Company, at its place of business in the city of Louisville, loaded two cars belonging to the Louisville & Nashville Railroad Company with oil. One of the cars contained sixty-five barrels, thirty-five of those barrels being naphtha oil and the remainder the ordinary illuminating oil. This car was loaded by the company, the car being on a side track near its warehouse, belonging to the Louisville & Nashville Railroad, and was intended to be shipped South. The testimony shows that the cars were known as cattle cars with open lattices, and that offered by the defense shows that the oil was in barrels that had been carefully inspected and such barrels as were generally used in shipping naphtha or other products of petroleum, and the barrels containing naphtha branded, as they maintain, as required by the statute, "unsafe for illuminating purposes." The head of the barrel was painted white with this brand in black letters in the center. The cars were taken from this switch by the Louisville & Nashville road by its freight engine or train in charge of the appellee, who was the conductor. After leaving Louisville, when some twenty or thirty miles from the city, the appellee discovered that oil was leaking from some one of the barrels, and after passing one or two depots he directed one of the employes to ascertain where the leak was. There is a window about two feet square at the end of the car which the employe climbed into with his lantern and passing through this window into the car discovered the barrel that was leaking. The appellee being informed by the employe of the condition of the barrel, the two, with a lamp each, passed through this window into the car, and finding that they could not handle the barrel the appellee called for another employe who passed through this window with his lamp. They set their lamps on the heads of the barrels and proceeded to raise the leaking barrel from the floor when, by the motion of the barrel or its peculiar position when being moved, the naphtha spouted out in a stream as large as a pencil, took fire from the burning lamp and seriously injured the appellee. Whether the liquid was thrown on the lamp or the explosion took place from the vapor produced by the naphtha is a mooted question. The appellee was badly burned and instituted this action against the appellant to recover damages for the injury, alleging that this naphtha was shipped as carbon oil and that he had no notice whatever of the inflammable character of the fluid. He claimed damages to the amount of twenty-five thousand dollars, and that sum the jury awarded him. He was badly burned about the face, so much so as to disfigure him for life; suffered much pain and anquish for several months; lost the use of his left arm, and his right hand is to some extent injured; his feet were also badly burned, but the principal injury after his recovery consists in the loss of the use of his left arm and the disfigurement of his face.
The defense relies upon various grounds for a reversal:
1. That it took all the necessary care and precaution in shipping the oil; that it marked it unsafe for illuminating purposes; that the carrier knew the car contained barrels of naphtha and that the entire product of petroleum had been shipped and was being shipped as carbon oil under an agreement to that effect with the railroad company, and that it was the duty of that company to have notified its employes of the danger. 2. That the court erred in admitting incompetent testimony and in denying to the defendant the right to introduce testimony that was competent. 3. In giving erroneous instructions to the jury and in refusing to give defendant's instructions. 4. The damages are excessive.
There were numerous instructions asked by the plaintiff and the defendant, all of which were refused, and the instructions prepared and given by the trial judge. In determining the questions raised by the instructions it will be necessary to notice the testimony for the defense that was excluded, as this testimony, if admitted, must have an important bearing on the issue in establishing at least good faith on the part of the appellant in delivering this naphtha to the carrier. It was offered by way of defense on the part of the appellant that the railroad company, whose agent and employe the conductor was at the time of the injury, knew that this car contained naphtha, and if not, that under an agreement with the company, through its officials, it had been shipping on its cars barrels of naphtha for a long period branded in the manner specified, with bills of lading, under the general designation of carbon oil, the railroad company knowing that the term embraced naphtha, and took it with that understanding, charging the same freight and shipping it as any other oil. The court refused to permit this testimony to go to the jury, and this is one of the errors complained of.
It is evident that if the owner, when shipping explosive or combustible substances, fails to notify the carrier or his agent of the danger attending its use, when transporting it, and an injury results to the employes of the carrier, the owner is liable for the injury sustained; but when the carrier is notified of the dangerous article or product (and there is none more so than naphtha when coming in contact with a burning lamp or with fire), and there is marked on the head of the barrel that which must necessarily apprise the carrier of its dangerous nature, and the carrier in his ordinary line of business undertakes to transport it and an injury occurs to one of its employes, the question then arises, is the shipper liable because knowledge was not brought home to its employe? We think not.
This, however, is not the question arising in this case. It is the mode of shipping and branding this naphtha adopted by both parties under an agreement or implied understanding, at least, between them, from which this liability to the employe springs, if any exists. The railroad company had been in the habit of receiving and shipping this naphtha as carbon oil under an arrangement with the appellant, with a brand placed on the head of each barrel: "Unsafe for illuminating purposes."
There was an implied, if not a positive, duty on the part of both corporations to notify those who handled this substance of its dangerous character, and no arrangement...
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