Stewart v. Roy Bros. Inc.

• Decision Date: 21 December 1970
• Citation: 265 N.E.2d 357,358 Mass. 446
• Parties: William G. STEWART, Jr. v. ROY BROS. INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 357

265 N.E.2d 357

358 Mass. 446

William G. STEWART, Jr. v. ROY BROS. INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 4, 1970.

Decided Dec. 21, 1970.

Robert E. Fast, Boston, for William G. Stewart, Jr.

Edward J. Barshak, Boston, for Roy Bros. Inc.

David W. Kelley, Boston, for Standard Storage Co.

Before TAURO, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.

TAURO, Chief Justice.

This case is before us on several questions of law reported by the Superior Court after verdict and with the assent of all parties. G.L. c. 231, § 111.

The action originally was one of tort brought by William G. Stewart, Jr. (Stewart) against Roy Bros. Inc. (Roy) for personal injuries sustained by Stewart while in the employ of Standard Storage Company (Standard) as a result of the alleged negligence of Roy. Standard was impleaded by Roy for indemnification against any judgment Stewart might recover against Roy.

At the close of the evidence, Roy and Standard as defendants moved for directed verdicts in their favor. Roy's motion was denied. Standard's motion was allowed as to count 2 of the third party declaration, and denied as to counts 1 and 3. The jury returned a verdict in the sum of $92,500 for Stewart against Roy, and returned a verdict in the same amount for Roy against Standard on counts 1 and 3 of the third party declaration. Before the verdicts were recorded, the trial judge reserved leave to enter verdicts for Roy and Standard as defendants. They seasonably filed motions that verdicts be entered in their favor in accordance with the leave reserved by the court.

The basic question reported is the propriety of the rulings of the trial court in denying the motions of the defendants Roy and Standard for directed verdicts in their favor on the counts against them. In deciding the correctness of each of these rulings 'we need only consider evidence favorable to the (particular) plaintiff from whatever source it came, * * * If upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in favor of the plaintiff, then there was no error in the denial of the motion, even if there may be other and different circumstances disclosed in the evidence which, if accepted as true by the jury, would support a conclusion adverse to the plaintiff. The question presented by the motion was not the weight of the evidence but whether there was any evidence viewed in the light most favorable to the plaintiff that would support * * * (his or its) cause of action.' Howes v. Kelman, 326 Mass. 696--697, 96 N.E.2d 394, 395. Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411. Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503.

The evidence is summarized: Stewart was seriously injured on October 25, 1963, while employed by Standard and while assisting in transferring liquid chemicals from a railroad car to a tank truck on the premises of his employer, Standard. At the time of the accident Stewart was assisting in loading ethyl acetate into a tank truck owned and operated by Roy. The ethyl acetate was stored by Standard for the owner, Union Carbide Corporation (Union Carbide). Roy was to make delivery of the ethyl acetate to a customer of Union Carbide. During the loading process there was a fire or flash explosion.

Standard was engaged in the business of 'public warehouseman,' storing chemicals for fifteen or twenty different companies. One of these companies was Union Carbide for which Standard stored chemicals, including highly flammable ethyl acetate. Standard did not own, buy or sell any of the materials. It merely stored the property of others. Union Carbide owned the ethyl acetate involved in the accident. It owned or leased railroad tank cars in which chemicals were delivered to Standard. Some Union Carbide chemicals were delivered to Standard by truck. Standard was the only warehouse used by Union Carbide in Massachusetts at or about the time of the accident; and truckers would come to Standard to pick up ethyl acetate for delivery to Union Carbide customers. There was no evidence for jury consideration as to the general nature of Union Carbide's business nor was there any evidence that Union Carbide made its own deliveries of chemicals to customers in its own tank trucks.

Roy was in the business of 'general freight,' picking up both liquid chemicals and dry freight. It had been a 'certified carrier' for twenty years. Roy owned about twelve tractors and about twelve tanks. Roy picked up only Union Carbide chemicals at Standard; but it also picked up liquid chemicals for delivery from various other depots in Massachusetts, including those of Monsanto Chemical, Dewey & Almy, Reichhold Chemicals, Gulf, Esso, and Shell. Standard was one of three places at which Roy would pick up flammable liquids. Roy was one of several truckers which came to pick up chemicals at Standard. Roy had been hauling ethyl acetate, a 'red label' item and a dangerously flammable liquid, for four or five years before the accident. One Ferren, the driver of the truck involved in the accident, knew that ethyl acetate was highly flammable. He had been given no special instructions in handling it.

At the time of the accident Stewart was thirty years of age and had been working for Standard for about five months as a 'pumper dispatcher' which job included transferring chemicals from railroad cars to tank trucks. He had been doing this particular job without assistance for about three months before the accident. At Standard the usual procedure was to pump ethyl acetate from the railroad car into the tank of the trailer by using a pump on the truck and the hoses which came with the trailer. There was evidence concerning an alternative explosion-proof method involving the use of a separate electric pump and a loading rack; but the availability of this method at the time of the accident was not clear on the evidence. The Roy truck which was involved in the accident consisted of a tractor with a gasoline engine and a tank trailer. On the tractor just forward of the rear wheels was a pump powered by the tractor's gasoline engine. This pump had been installed on the tractor by Roy. At the time of the accident Roy was using two types of hose with its tank trucks, a hard hose reinforced with wire and a more flexible soft hose. Roy was in the process of 'phasing out' the use of the soft hoses and replacing them with hard hoses which locked into place and would not 'kick out' of a compartment when liquid was pumped through them.

On the day of the accident the Roy truck came to Standard to pick up a load of ethyl acetate owned by Union Carbide for delivery to Union Carbide customers. Stewart stood on top of the tank trailer to assist in loading by directing the flow of liquid chemical into the tank and to tell the truck driver when to stop pumping. Stewart was provided with a soft hose from the Roy truck and had to hold it in place while loading. During the loading process Stewart heard a loud roaring noise and let go of the hose which 'kicked out' of the tank compartment and sprayed him with ethyl acetate. He saw fire toward the front of the truck. Stewart's clothing was ignited and he was severely burned.

Roy was the only trucker which came to Standard with soft hoses. About six months before the accident Standard's foreman came to the manager of Roy and told him that Standard objected to soft hoses which might come out of the compartment during loading. Roy's manager said he would take care of it.

At the trial an expert witness for Stewart testified that in his opinion the fire was caused by the ignition of ethyl acetate vapors by a spark from the exhaust system of the Roy truck engine which was used to operate the pump. An expert witness for Roy stated that in his opinion the fire was caused by static electricity generated by 'splash filling' in the tank or, if the fire started ar ground level, by a spark from the exhaust pipe of the truck. He further testified that it was an unsafe practice to load the compartment with the truck motor running.

Stewart did not reserve his rights to bring a common law action against Standard under G.L. c. 152, § 24. Standard and Union Carbide had workmen's compensation coverage and Stewart received workmen's compensation benefits from Standard's insurer.

NEGLIGENCE OF THE DEFENDANT ROY.

There was sufficient evidence of Roy's negligence to warrant a jury verdict for Stewart. On the evidence most favorable to Stewart the jury could have found that Roy was negligent when it participated in an improper and unsafe practice of loading its tank truck with ethyl acetate by use of a pump attached to the truck and operated by the truck's gasoline engine; the jury could have found that this operation presented an unreasonable danger that the ethyl acetate vapors would be ignited by sparks from the exhaust pipe of the truck engine which was located about six inches from the pump. The jury could infer that Roy in providing an unsafe method of loading or in participating in the use of an unsafe method failed to exercise the degree of care required under the circumstances. Failure to use preferred methods of operation and violation of accepted trade practices warrant a finding of negligence. McMahon v. McHale, 174 Mass. 320, 325, 54 N.E. 854. Edgarton v. H. P. Welch Co., 321 Mass. 603, 609, 74 N.E.2d 674.

The jury could also have found the following: Roy was using both hard hoses and soft hoses on its trailers. Other companies used only hard hoses. Roy was phasing out the use of soft hoses but was continuing their use until they wore out. A hard hose would 'lock into' the tank but a soft hose would not; and if not held in place, it would 'kick out.' Upon the evidence most favorable to Stewart, even if the jury found that Roy was not responsible for igniting the initial explosion or fire, the jury could have...