
    FAUSTO COSULICH, et al., Respondents v. THE STANDARD OIL CO. OF N. Y., Appellant.
    
      Kegligence—Explosion in oil yard—Res ipsa loquitur—Proximate and remote causes of damage.
    
    In an action to recover damages for the destruction of plaintiffs’ vessel by a fire, alleged to have been caused by defendant’s negligence, it appeared that, at the time of the accident, defendant owned and managed an oil refinery on Newtown Creek, and that plaintiffs’ vessel was then lying at the adjacent dock receiving cargo ; that suddenly there was a flash, and, at the same moment, an overheated, or overpressured iron body, ten feet in diameter, in defendant’s said oil yard, where oil was refined, and in close contiguity to large tanks of oil, exploded, and a fire instantly appeared in defendant’s yard, in or about the locality where the explosion occurred, and the street was filled with burning oil, and the fire communicated to a lighter lying under the stern of plaintiffs’ ship, which lighter exploded and plaintiffs’ vessel lying on the creek was ignited. The primary causes of the explosion and of the fire were unexplained, except as above.
    
      Held, that the evidence showed that the fire was caused by the explosion on defendant’s premises; that the occurence of the explosion, unexplained, was under the circumstances, prima facie evidence of negligence on the part of the defendant; and that it was proper to submit to the jury the question whether the damage sustained by plaintiffs was the direct and proximate result of said negligence, or only a remote result.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided March 6, 1888.
    Appeal from judgment for plaintiffs, entered on verdict, and from order denying motion for new trial.
    Action for damages sustained by plaintiffs through the partial destruction of their vessel, the bark “Phison,” alleged to have been caused by defendant's negligence.
    The facts and exceptions appear in the opinion.
    
      
      Carter & Ledyard and L. C. Ledyard, for appellant:
    I. The allegation of negligence made by the complaint is that, through the negligence of the defendant, there resulted on a given day an explosion and fire on its premises ; that said fire extended to and was directly communicated to the plaintiffs’ vessel, and that said fire was caused wholly by defendant’s negligence and carelessness. It is to be noticed that there is no allegation here of cause and effect as between the fire and the explosion ; both are alleged generally, and no priority in point of time is assigned to either; the gist of the allegation is that the fire caused the damage, that the defendant’s negligence was the cause of the fire. It is nowhere alleged that the fire occurred in consequence of the explosion. The learned judge, in ruling upon the motion for a nonsuit, was evidently under the impression that the plaintiffs sought a recovery and had by their proofs entitled themselves to a recovery for damages occasioned by an explosion. In this we submit that he was quite in error. The complaint does not seek a recovery for damages caused by an explosion, but for damages caused by a fire. But the learned judge, misled possibly by this erroneous view of the plaintiffs’ cause of action, fell into the further error of assuming that a case had been made out, to which the maxim, “ res ipsa loquitur,” was applicable. Assuming for our present purpose, that there is such a rule of law, we insist that no case admitting of its application had been made out by the plaintiffs.
    II. In order to apply such rule, the plaintiff must establish three things: 1st. That an explosion, the cause of which was left unexplained, occurred upon the premises of the defendant. 2d. That the damages sustained by the plaintiffs were caused by such explosion; and, 3d. That such damages were the natural and proximate, and not the remote, consequence of the explosion, (a) The case contains no proof of any explosion on the defendant’s premises. Further than this, there is no proof in the case tending to show what it was that exploded. (b) Nor is there any proof in the case that the damages sustained by the plaintiffs were caused by any explosion. 1. Evidently the complaint was not drawn with any such view; it alleges distinctly that the damages were caused by the fire as distinct from the explosion. 2. The whole testimony shows, as matter of fact, that the damage to the vessel was caused by the fire. 3. It was conceded in the charge, as in view of numerous decisions, it must have been conceded (Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619; Lansing v. Stone, 37 Barb. 15; Calkins v. Barger, 44 Barb. 424), that the rule which he laid down in resj>ect to explosions had no application to the case of a fire. Therefore it was incumbent upon the plaintiffs to show an explosion antecedent to, and causing the fire. But the testimony may be ransacked in vain for a scintilla of evidence tending to show either that the explosion was antecedent to the fire or that it was in any degree the cause of it. It may well be, for aught that appears to the contrary in the evidence, that the fire had already been started within the works through some unknown or unrevealed cause, and was itself the cause of the explosion. 4. It is not sufficient for the plaintiffs to show that the explosion might have preceded and might have caused the fire; they must establish as part of their prima f acie case that it did cause the fire. The evidence given by them, tends to prove that the fire preceded the explosion and was not caused by it. Payne v. Forty-second Street R. R. Co., 40 Super. Ct. 8; Searls v. Manhattan R. R. Co., 101 N. Y. 662. (c) The proof conclusively shows that the damages were the ultimate and remote but not the proximate and natural results of the explosion. (1.) What are natural and proximate and what are remote damages is a question which depends very much upon the facts of each particular case. 1. Where the act itself is malicious or unlawful a different rule is applied from that which governs cases in which the original act was merely negligent. In the former class of cases damages will be allowed which in the latter class would be excluded by reason of remoteness. Ryan v. N. Y. C. R. Co., 35 N. Y. 210; Kerr v. Penn. R. R. Co., 62 Penn. St. 353; Hoag v. L. S. R. R. Co., 85 Penn. St. 293; Reiper v. Nichols, 31 Hun 491. 2. Upon the assumptions which we have above made, for the purposes of this argument, the case may be thus stated: That an explosion occurred upon the defendants’ premises, bu,t what the thing was which exploded is not shown; that in consequence of such explosion a fire took place, and that from the fire oil ignited; that the oil escaped upon adjoining premises and from those premises to the creek; that it was carried upon the waters of the creek to a vessel not belonging to the defendant or under its control; that this vessel, the lighter, contained inflammable and explosive substances; that she was set on fire and exploded, and that through such explosion burning pieces of the lighter were thrown upon the plaintiffs’ ship and set fire to her. This is not the case of one but of half a dozen different intervening events and causes, the concurrence of all of which was necessary to produce the injury, and we think that there is no rule laid down by any decided case which would carry the principle of liability so far.
    III. The maxim “ res ipsa loquitur ” proceeds upon the theory that where something is shown to have occurred upon a man’s premises which is of so unusual a character that it may be said, as a general rule, that it never occurs except as the result of his negligence, then it is sufficient for the plaintiff to prove the fact of its occurrence, and the law will thereupon presume that it was occasioned by his negligence. Such a rule is applied where the defendant stands in some relation of duty, as in the familiar case of objects dropped into a highway from adjoining buildings. The mere fact of an explosion is not sufficient to raise the presumption of negligence, nor is it the common experience of mankind that explosions occur through negligence. Neligence can be predicated of explosions in general no more universally than it can be alleged with respect to fires. We have no evidence whatever tending in the most remote degree to show any attendant circumstances; the most that can be claimed for the plaintiffs’ evidence is, that it tended to establish the bare fact of the occurrence of an explosion. That is not sufficient to raise any presumption whatever. J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121; Curtis v. R. & S. R. R. Co., 18 N. Y. 534; Olive v. Whitney Marble Co., 103 N. Y. 292; Losee v. Buchanan, 51 N. Y. 476. Probably the best considered case upon the subject is that of Young v. Bransford, 12 Lea (Tenn.) 232. The charge of the judge was in these words: “ When the killing is proved to have been done by the explosion of the defendant’s boiler, the burden is thrown upon them to show that they were guilty of no negligence, and that the accident was unavoidable. So that while the burden of proof is upon the plaintiff to make out her case in the first instance, wdien she has shown the explosion and killing, the burden then shifts upon the defendants to exonerate themselves from presumed negligence by showing that they were in fact guilty of no negligence, and upon this point, whether there is negligence or not, your verdict must turn.” This was held error, for which a new trial should be ordered.
    
      Ullo, Ruebsamen & Hubbe, attorneys, and Lorenzo Ullo, of counsel, for respondents :
    I. That an explosion raises a presumption of negligence, is well settled by the highest tribunal of this state, and by the United States courts. Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Posey v. Scoville, 10 Ib. 141; Dunlap v. S. S. Reliance, 2 Ib. 249; The Sydney, 27 Ib. 119. And this presumption of law applies to all cases of injuries caused by explosion. Transportation Co. v. Downer, 11 Wallace 129; The New World v. King, 16 Howard 477 ; Rintoul v. N. Y. C. H. R. R. Co., 21 Blatch. 439; S. C., 17 Fed. Rep. 905; Mullen v. St. John, 57 N. Y. 567. This presumption of negligence is based, as is laid down in Caldwell v. Stevens & Condit Transp. Co. (supra), on the old principles of common law. Church v. Griggs, 2 Camp. 69; Stokes v. Suttonstall, 13 Peters 181; N. J. R. R. Transp. Co. v. Pollard, 22 Wallace 341; Scott v. London & St. Catherine Dock Co., 3 Hurlb. & C. 596; Transp. Co. v. Downer, 11 Wallace 129 ; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Kearney v. R. R. Co., L. R. (69 B.) 759; Byrne v. Boadle, 2 Hurlb. & Colt. 772; Mullen v. St. John, 57 N. Y. 567; Jenney v. City of Brooklyn, 44 Hun 371; Rintoul v. N. Y. C. R. R. Co., 17 Fed. Rep. 905; Edgarten v. N. Y. & Harlem R. R. Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse R. R. Co., 18 Ib. 534; Wildmer v. N. Y. Elevated R. R. Co.; Searles v. Manhattan R. R. Co., 101 N. Y. 861. There was no error, therefore, in charging the jury in this case, that the explosion, if unexplained, raised the presumption of negligence. The defendants cannot complain, for the court went even further than the law requires ; substantially, the jury were charged by the court to look for surrounding circumstances, such as would overcome the presumption of law, and satisfy them that in this case defendants used ordinary care.
    Far from showing ordinary care, the circumstances surrounding the explosion showed a specific act of negligence of the defendants. There was first a rumbling noise, a wobbling or shaking of the boiler, or oil tank, and then the explosion. Boilers or oil tanks do not usually wobble or make a rumbling noise, such as to be heard and noticed across the street, and inside the office of another factory. That noise and wobbling or shaking of the boiler indicated an imminent explosion. This is evidenced by the uncontradicted testimony of Ernest Berger, an engineer of more than thirty or thirty-two years standing, familiar with boilers and the generation ¿of steam. According to his testimony, that rumbling noise or wobbling or shaking of the boiler or oil tank “ indicated overheating or two much pressure on the boiler .... it indicated an overpressured boiler or overpressured body.”
    II. The motion to dismiss on the ground that it appears that the damage sustained is too remote, not being the natural and proximate cause of the negligence imputed to the defendant, was properly denied, and that question was properly submitted to the jury. It is now well settled that it is proper to submit the question Avhat is natural and proximate cause of damage to the jury. Ehrgott v. Mayor, etc., 96 N. Y. 265; Lowery v. Manhattan R. R. Co., 99 Ib. 158; Webb v. P. W. & O. R. C., 49 Ib. 424; Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U. S. (4 Otto) 469; Louisiana Mutual Ins. Co. v. Tweed; 74 U. S. (7 Wall.) 44-53. But contra, defendants rely on Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210; Penna. R. R. v. Kerr, 62 Penn. 353. The controversy raised by these last quoted cases has been laid at rest, and is now only interesting as ancient history. Milwaukee v. Kellogg (supra); Webb v. R. R. Co., 49 N. Y. 420; R. R. Co. v. Hope, 80 Pa. 373 ; Kellogg v. R. R. Co., 26 Wis. 224; Perly v. R. R. Co., 98 Mass. 414; Higgins v. Dewey, supra; Fent v. R. R. Co., 59 Ill. 349; Ehrgott v. Mayor, etc. (supra); Webb v. R. W. & O. R. R. Co. (supra) 431. As a matter of law, the \\Trong-doer is responsible .for all the natural and proximate consequences of his acts. The damages by burning to the Phison, were the natural and proximate effect of the explosion. There is no proof, and none Avas offered, or even intimated, that an independent cause intervened.
   By the Court.—Dugro, J.

The material allegations of the complaint are as folloAvs:—

First. That the defendants, at the time of the accident, owned and managed a petroleum refinery on Newr town Creek, and the plaintiffs’ vessel was then lawfully lying, for the purpose of receiving a cargo, at the wharf next adjacent to the defendants’ said oil works on New-town Creek, to wit, at the wharf of the Devoe Manufacturing Co.

Second. That, although the defendants well knew that said business of refining petroleum was dangerous and necessitated extraordinary care, yet they were so negligent and careless in the construction and management of their said works and refinery, that there resulted on the day of the accident, from such negligence and carelessness, an explosion and fire on defendants’ premises, and that such fire extended to, and was directly communicated to the “ Phison ” from said premises, whereby the bark was greatly injured and partly destroyed.

Third. That said fire was caused wholly by defendants’ negligence and that the injury to plaintiffs’ véssel was the result solely thereof.

The defendant in its answer admitted that “it owned and managed a petroleum refinery on Newtown Creek,” denied that it was negligent in the construction and management of its works, and denied that there resulted, from any negligence of carelessness on its part, an explosion and fire on its premises, and further denied that such fire was directly communicated to the bark from such premises. The defendant alleged that the fire which occurred on its premises, was accidentally begun, and charged contributory negligence- on the part of those in charge of the vessel.

The case was presented to the court on the plaintiffs’ evidence alone, the defendant after the denial of its motion for a nonsuit, having declined to put in any evidence in defense. •

Among other exceptions taken by defendant was one to the following portion of the judge’s charge : “ I have to say to you, however, that from the mere fact of the explosion, if unexplained, a presumption arises that somebody in the defendant’s employ was negligent, and the case therefore comes down to this, whether the circumstances surrounding that explosion in themselves show that the defendants used the ordinary care which the law requires of them.”

The first point made by the appellant is that the complaint does not seek a recovery for damages caused by an explosion, but for damages caused by a fire. Accepting, for the purposes of argument, the point as well taken, we then have the cause of action alleged one for damages caused by a fire. The evidence shows that the fire resulted from the explosion, and that the explosion occurred on the defendant’s premises, for from the testimony of the witness Berger, it satisfactorily appears that the explosion took place in the oil yard of the defendant, behind a wall which was around the whole yard on Ash street. Great stress is laid by appellant upon the following question, put to the witness Berger, and his answer thereto, it being claimed that it is the only evidence which shows the place of the explosion, and that there is therefore no proof of the explosion having occurred on defendant’s premises: Q. And that brick wall—did that belong to the Standard Oil Company or any other company ? A. As much as I know, the Standard Oil Company.” Now the witiless had before this question was put to him, said: “ The Standard Oil Company’s works extended from the river up to Ash street, on the other side of Ash street was our factory; there was a wall around the whole yard on Ash street.” It was not therefore of any account to whom the wall belonged, as the wall only bounded the oil yard. There was evidence in the case showing that the explosion caused the fire, for the witness Berger in answer to' the question, “ What was the very first thing you noticed ? ” said, I heard a little grumbling in the air—I see the boiler begin to wobble.” Later .he said, “I knew that an explosion was to happen; when the explosion came it was a terrible effect because the air pressure throwed me down, and the same moment when I turned again, it gives out much dust;—everything was on fire and the whole street was all one fire burning oil.” The witness, Gasbach, says: I saw a flash and at the same moment all at once an explosion . . I saw the fire first in the yard, a little forward where the big tanks of oil is, where they refine oil, it was on the other side of the yard.”

From these and other parts of the, testimony it seems to me to be established beyond reasonable doubt, that the explosion caused the fire. Certain it is, that nowhere in the evidence does it appear that a fire occurred before the explosion, and it would be simply a guess at possibility to assume that it did. The first appearance of fire was instantly after the explosion, and in or about the very locality in which the explosion took place. There is no evidence in the case which makes it matter of conjecture whether the fire was caused by the explosion, or by some other particular cause, for no other possible cause is shown to have had existence.

The case of Losee v. Buchanan, 51 N. Y. 476, on a hasty reading, might lead to the supposition that evidence of negligence, as distinguished from such evidence as would raise a presumption of negligence, in cases similar to this one, is necessary; but after careful consideration, I do not believe this to have been the meaning of the decision. In the case of Mullen v. St. John, 57 N. Y. 567, the former case is explained as not affecting the presumptions which may arise from the fact of certain occurrences, for Dwight, J., speaking of the case, says, “ While that case holds that there must be evidence of negligence, it does not at all prescribe the mode of proving it.

It seems that the presumption arises, in cases similar to the one under consideration, from the nature of the act, not from the nature of the relations between the parties. Rose v. Stevens & Condit Trans. Co., 11 Fed. Rep. 438. So it appears to me that an explosion, unexplained under the circumstances shown, of an overheated or overpressured iron body, ten. feet in diameter, in an oil yard in close contiguity to “ big tanks of oil,” and “ where oil is refined,” that is near material which common knowledge teaches will by an explosion be rendered extraordinarily dangerous to all persons and property in the vicinity, is such an occurrence as demands in justice, the application of that rule of law which makes the fact of certain occurrences prima facie evidence of negligence.

In Scott v. London and St. Catherine’s Dock Co., 8 Hurl. & N. 596, the court said: Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident, arose from want of care.” This case is cited with approval in Transp. Co. v. Bowner, 11 Wall. 129. To the same effect it has been held in Mullen v. St. John, 57 N. Y. 567; Losee v. Buchanan, 51 N. Y. 476; Gerlach v. Edelmeyer, 47 Super. Ct. 292 ; aff’d, 88 N. Y. 645 ; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Rose v. Stevens & Condit Transp. Co., 11 Fed. Rep. 438; Wiedmer v. N. Y. Elevated R. R. Co., 41 Hun 286; Lyons v. Rosenthal, 11 Ib. 46.

It is needless to discuss whether or no cases may arise where it would be proper, from the nature of the occurrence, to submit to the jury the evidence of the fact of an explosion, and leave to them a determination of the question as to whether in a particular case the mere fact of an explosion, unexplained, should or should not be considered as establishing negligence; for the case under consideration is certainly not one where there can be any fair doubt in regard to the reasonableness of the application of the rule as above stated. The propriety of such a submission must certainly be met with decided objection where the undisputed evidence shows no case of trivial explosion, no case where the very occurrence seems to offer fair explanation or raise a doubt as to its being due to human agency; but a case occurring under circumstances of extraordinary danger, and where no explanation whatever of the primary cause can be perceived from the circumstances of the occurrence, and no fair reason to doubt that negligence occasioned the explosion is apparent from the facts known.

The case of Young v. Bransford, 12 Lea (Tenn.) 282, upon which the appellant seems greatly to rely as establishing a rule of law, contrary to that which I hold to be applicable to this case, relied somewhat for the rule it declares upon the case of Rose v. Stevens & Condit Trans. Co., 21 Am. Law Reg. 522. A careful reading of the latter case will show, however, that it goes further than Young v. Bransford, and does not vary from the rule, as I understand it, and far within which this case seems to me to stand. Wallace, J., in his opinion denying a motion for a new trial, adopted the rule as applied herein to the case under consideration, although in his charge he did not go so far.

The remaining point of importance to be considered is, whether the learned judge, committed an error at the trial in leaving to the jury the determination of the question, as to whether the damage sustained by the plaintiff was the direct and proximate result of the defendant’s negligence, or only a remote result.

The case of Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210, held that from the facts in that case, it appeared that the damage sued for was not the necessary and natural result of the negligent act complained of. A different state of facts in the case under consideration makes the rule there laid down inapplicable. I am of opinion that the learned judge properly left the question as to whether the injury complained of was a probable consequence of the negligent acts of the defendant to the jury. Webb v. The Rome W. & O. R. R. Co., 49 N. Y. 420.

The best statement of the rule of law as applicable to a case such as this, is that “ the wrong-doer is responsible for the natural and proximate consequences of his misconduct, and what are such consequences must generally he left for the determination of the jury.” Ehrgott v. Mayor, etc., 96 N. Y. 264.

In the charge, the law applicable to the case was fairly presented and no error committed.

The admission of that part of the witness Berger’s testimony to which an exception is noted, was proper, but even if not so, material error did not occur by its reception. None of the other matters presented by the appellant would warrant action other than an affirmance of the judgment and order,which is hereby ordered, with costs and disbursements of appeal.

Sedgwick, Ch. J., and Truax, J., epneurred. 
      
      
         The charge as to this point was as follows :
      “ You must inquire whether the injuries sustained by the plaintiffs were the direct and natural result of defendant’s negligence, or only a remote result. If the plaintiffs’ vessel was set on fire by the explosion of the cargo of the lighter in the stem of it, and if the explosion on board of that lighter was not in direct connection with and directly caused by the explosion which occurred in defendant’s yard; if a new intervening cause came in which had no direct, natural and ordinary connection with the explosion in defendant’s yard, then the defendant is entitled to your verdict. But if the plaintiffs’ damages were the direct and proximate result of the defendant’s negligence within the rule laid down by me, and without any other intervening cause, then the plaintiffs are entitled to your verdict.”
      There was evidence that the fire was communicated to the lighter through a pipe running to it from the shore.
     