Stone v. Boston & A.R. Co.

• Decision Date: 01 July 1898
• Parties: STONE v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 536
51 N.E. 1

STONE
v.
BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

July 1, 1898.

Exceptions from superior court, Worcester county; John Hopkins, Judge.

Action by Edward E. Stone against the Boston & Albany Railroad Company. From a verdict for defendant directed by the clerk, plaintiff brings exceptions. Exceptions overruled.

[171 Mass. 536]W.S.B. Hopkins, H.W. King, and C.M. Rice, for plaintiff.

F.P. Goulding and F.L. Dean, for defendant.

ALLEN, J.

This is an action of tort to recover for the loss of the plaintiff's buildings and other property by fire, under the following circumstances: The defendant owned and operated a branch railroad extending from its main line at South Spencer to the village of Spencer, and had at the Spencer terminus a passenger station, a freight house, and a freight yard, all adjoining a public street. On the side of the freight house, and extending beyond it about 75 feet, was a wooden platform about 8 feet wide and 4 feet high, placed upon posts set in the ground, the underside being left open and exposed. The main tracks ran along on the front side of this platform [171 Mass. 537]and freight house, and on the rear of the platform there was a freight track, so near as to be convenient to load and unload cars from and upon it. The plaintiff was engaged in the lumber business, buying at wholesale and selling at wholesale and retail, manufacturing boxes, etc. His place of business comprised several buildings, some of which were across the street from the defendant's buildings, and his principal buildings were about 75 feet from the point on the defendant's premises, beneath the platform, where the fire originated. The evidence tended to show that the platform was mostly used for the storing of oil which had been brought upon the railroad, until it was taken away by the consignees; and that the platform had become thoroughly saturated with oil, which had leaked from the barrels, and which not only saturated the platform, but dripped to the ground beneath. More or less rubbish accumulated from time to time under the platform, and was occasionally carried away. The evidence tended to show that this space below had been cleaned out two or three weeks before the fire. On the day of the fire, September 13, 1893, from 25 to 30 barrels of oil and oil barrels were upon the platform. Some were nearly or quite empty, some were partly full, but the most of them were probably full and nearly full. The only evidence to show how the fire originated tended to prove that one Casserly, a teamster, brought a load of boots to be shipped upon a car which was standing upon the track on the rear side of the platform; that he was smoking a pipe; that he stepped into the car, to wait for the defendant's foreman of the yard, who was to help him unload the boots; that, in stepping in, he stubbed his toe, and knocked some of the ashes and tobacco out of his pipe; that he relighted the pipe with a match, and threw the match down; that at this time he was standing in the door of the car, facing

[51 N.E. 2]

the platform. It must be assumed upon the evidence that the fire caught upon the ground underneath the platform from the match thrown down by Casserly. All efforts to extinguish the fire failed. It spread fast, and was almost immediately upon the top of the platform,-running up a post, according to one of the witnesses,-and very soon it reached the barrels of oil, which began to explode, and the fire communicated to the plaintiff's buildings, and they were burned. [171 Mass. 538]There was evidence tending to show that all of the oil had been upon the platform for a longer time than 48 hours. According to the testimony of the plaintiff, the platform was never, to his knowledge, empty of oil or oil barrels. It was completely saturated with oil, and that general condition of things, so far as the platform was concerned, had existed for eight years,-ever since he himself had been there. Upon the evidence introduced by the plaintiff, the court directed a verdict for the defendant.

The plaintiff, in substance, contends before us that the defendant was negligent in storing oil upon the platform, taking into consideration the condition of the platform, and of the ground and material under it, and the length of time during which the oil had been allowed to remain there; that, irrespectively of the question of negligence, the platform with the oil upon it constituted a public nuisance, especially in view of Pub.St. c. 102, § 74, providing that the oil composed wholly or in part of any of the products of petroleum shall not be allowed to remain on the grounds of a railroad corporation in a town for a longer time than 48 hours without a special permit from the selectmen; that the defendant is responsible for the damage resulting from the public nuisance, whether the act of starting the fire was due to a third person or not; and that the question should have been submitted to the jury whether the damage to the plaintiff's property was the natural and proximate consequence of the defendant's tort. Upon the evidence, the supposed tort of the defendant, whether it be called “negligence” or “nuisance,” appears to have been limited to the keeping of oil too long upon the platform. Assuming this oil to have been a product of petroleum, and so within the statute cited, nevertheless the defendant, as a common carrier, was bound to transport it and deliver it to the consignees. The oil, as is well known, was an article of commerce, and in extensive use, and the defendant was bound to transport it, and keep it for a reasonable time, after its arrival in Spencer, in readiness for delivery. There was no evidence that the oil was liable to spontaneous ignition, or that the platform was an unsuitable place for its temporary storage till it...