
    Lee v. Vacuum Oil Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    1. Nuisance—Naphtha Pipe Line.
    Defendant was engaged in the business of supplying a gas-light company with naphtha, by pumping it through pipes laid along an abandoned canal and under the streets of a city. The pipe was in good order, and safe, and there was no evidence of leakage from the pipe, or that any gas escaped therefrom. Naphtha was allowed to stand in the pipes when the pumps were not in use. A New York statute authorizes the constructing and operating, for public use, lings of pipe for conveying petroleum, etc. Held, that defendant’s pipes did not constitute a nuisance.
    2. Negligence—Instructions—Errors Cured.
    In an action for injuries caused by an explosion of the naphtha, an erroneous instruction that the jury should determine whether defendant maintained a nuisance, and also any error in a ruling of the court as to whether defendant was guilty of violating the laws regulating the storage and keeping of crude petroleum, were not prejudicial, where the jury found that defendant was guilty of actual negligence so as to entitle plaintiff to recover.
    8. Same—Facts for Jury.
    The evidence showed that third persons had caused a break in the pipe by which the naphtha escaped into a sewer, and caused the explosion; that one of defendant’s servants attended the pumps and another the receiving tank, the exact time when the pumps should be started having been agreed on; that the latter servant waited over two hours after the time agreed on, but there was no discharge into the tank; and that he did not during that time inform the man at the pumps, though a telephone connecting the two places might have been used. Held, that an instruction that if, at a time when the man at the tank should reasonably have been required to give notice that there was no discharge, enough naphtha had escaped into the sewer to cause the explosion, the failure to report was not negligence such as to authorize a verdict for plaintiff, was properly refused, as the jury should determine the negligence from all other facts in evidence as well as from this one.
    4. Same.
    An instruction that if the'sole cause of the accident was the breaking of the pipe by third persons, without notice to defendant or any co-operating negligence on the part of defendant, plaintiff could not recover; was properly refused, as plaintiff sought to recover on the ground that defendant was negligent in not discovering the break after it was made.
    Appeal from circuit court, Monroe county.
    Action by Ann Lee against the Vacuum Oil Company. Plaintiff is the administratrix of the estate of John Lee; deceased, who died on the 21st day of December, 1887, in consequence of injuries he received that day by the explosion of gas in a building in which ■ lie was employed as a' laborer, by the occupant. It is alleged that his death was caused by the negligence of the defendant, and it is claimed that it is liable for such damages as the next of kin of the deceased have sustained in consequence of his death, as provided in sections 1902 and 1903 of the Code of Civil Procedure. Judgment for plaintiff, and defendant appeals.
    Argued before Barker, P. J., and Dwight and Macombeh, JJ.
    
      Theodore Bacon, for appellant. William ff. Coggswell, for respondent.
   Barker, P. J.

The defendant is engaged in the manufacture of oils from crude petroleum. In the process there is produced a fluid substance, called “naphtha,” which, at the low temperature of 13 deg. Fahrenheit, gives off vapor, or gas, which is inflammable, and explosive when confined. Its explosive power is estimated to be equal to 140 pounds to the square inch. The defendant’s works are located in the city of Rochester, on or near the bank of the abandoned Genesee canal. ’ The Municipal Gas Company is engaged in the manufacture and distribution for consumption of illuminating gas, consumed in the city of Rochester. Its works are also situated on the banks of said canal, nearly a mile and a half north of the defendant’s works. The latter company use naphtha in the manufacture of gas, consuming each month about 30,000 gallons, and the defendant supplies the same. Each company stores such quantity as it may have on hand in iron tanks. The naphtha sold by the defendant to the gas company is transported from its. tanks to the gas company’s tank by pumping it through a three-i nch wrought-iron pipe. The grade on which the pipe is laid is such that naphtha will not flow to the gas company’s receiving tank by force of gravitation. The pipe is laid in the bed of the canal, and passes under Atkinson street and under the Atkinson-Street bridge, which crosses the canal. At that point the pipe is laid within a few feet of the street sewer, which connects witli other sewers, running in a northerly direction, and at some distance, and discharges into-the Genesee river under the building destroyed by the explosion. The sewer passing under the building was open, so that gas could escape into and be distributed through the same. Naphtha was delivered to the gas company, for the purposes mentioned, every two weeks, and from twelve to fifteen thousand gallons at each delivery, taking from three to four hours to pump that quantity through the pipe. During the intervening time the pipe was filled with naphtha, the quantity being about 2,000 gallons. The defendant had acquired the consent of the parties owning the bed of the canal to lay the pipe therein for the uses and purposes for which it was intended. A steam railroad track was also laid along the bed of the canal, and the pipe in question was laid by the side of, and in some places under, the said track. No time will be taken to prove that the business of transporting naphtha by the-means adopted, from and to the place mentioned, and on the line adopted, was a lawful business, for that proposition cannot be reasonably disputed. The means adopted to transport this substance from one point to another is-practically the same as the system in use for distributing illuminating gas, produced from coal, in all cities where it is used, and the danger to lite and property in the aggregate are no greater, if they cannot be said to be less. The legislature has authorized the formation of corporations for “the purpose of constructing and operating, for the public use, lines of pipe, for conveying or transporting therein petroleum, gas, liquids, or any products or property,” and such corporations may lay pipes across and along public streets and highways, and institute proceedings to condemn lands, and acquire the right to. lay and construct lines of pipe when they are unable to negotiate for that privilege with the owner. This law was not enacted for the purpose of making legitimate a business which prior thereto was condemned as unlawful, and contrary to public policy. The chief purpose of this act was to provide-for the creation of corporations, to carry on a lawful business in a manner and by the means whicli theretofore were proper and lawful for any individual or company of persons to do, using due care in the management of the same.

The real question presented is, was the evidence sufficient to sustain the charge imputing negligence to the defendant in the mode and manner of laying the pipe, or in neglecting to inspect the same to see if it remained in a safe and secure condition, or in failing to detect that it was broken and unfit, for use, on the day the accident occurred, in time to have prevented the escape of naphtha in such quantities as to become dangerous to life or property. The pipe was constructed from prime material by an approved process by manufacturers of experience, and had sufficient strength l'or the transportation of naphtha, and was well adapted for that use between the places mentioned, under the pressure applied for pumping, and was well laid and properly covered with earth. It had been in use several years, and there is no-evidence that its original strength had been wasted in any perceptible degree by use. The test which was made after the accident of the section of the-pipe which was broken fully sustains this statement. The last time the pipe was used before the accident was on the 7th day of December, 1887, on which day about 12,000 gallons of naphtha was successfully pumped through the pipe without any indication that the same was not in perfect order. There is no serious claim made by the plaintiff that the pipe was not in good order, and safe for use* on that day. The question of the defendant’s negligence is to be determined mainly by what occurred after the day named, in connection with the charge made, that the defendant’s agents and servants in charge of the line failed, by reason of their carelessness and indifference under the circumstances, to discover that the line was broken, so that all the oil pumped was discharged and wasted. On and prior to the said 7th day of December the city was constructing a sewer in Atkinson street, which was intended to connect with the then existing sewer which passed under the bridge which carried Atkinson street over the canal. The contractors constructing the sewer in their operations exposed a section of the pipe for several feet, and in blasting rock a fragment struck the pipe, and bent it at that point, which resulted in breaking or pulling it apart at one of the joints, so as to discharge, near the sewer, all the naphtha that was in, or might be pumped into, the pipe. This occurred on the 8th of December, one day after the pipe was last used for transporting naphtha to the gas company’s tank. The soil at or near where the pipe was broken was such as to permit of a ready flow of naphtha between the broken end of the pipe and the sewer. Each way from the place of fracture the pipe was laid on an ascending grade, so that its contents at once discharged, but it is not claimed that any of the naphtha which was in the pipe, and which must have escaped immediately after the break, caused the explosion. The defendant’s servants made no inspection of the line between the 7th day of December and the day of the accident, whicli was on the 21st day of the same month, for the purpose of ascertaining if it was in good order, and suitable for use, nor had it been its custom to make an inspection for that purpose. On the day of the accident the defendant had an order from the gas company to deliver to it 15,000 gallons of naphtha. Wilson and Sweeny, two of the defendant’s servants, who had charge of the pumps and the pipe line, undertook to make the delivery. As it was customary with them, they agreed upon the precise time when the pumps should be started, which, on this occasion, was 10 minutes past 12 M., and time enough was allowed to permit Sweeny to go from the defendant’s works-to the gas company’s tank, and measure the quantity of naphtha which was then stored therein, and to open the stop-cocks before the time for starting the pumps should arrive, as agreed upon. Sweeny did reach the receiving tank and opened the stop-cocks before Wilson started the pumps, which lie did at the time agreed upon, and he continued to operate the same until he had pumped into the pipe 12,000 gallons, which took about two hours and a half, before he was notified that the pipe was broken, and none of the oil reached the receiving tank. Sweeny remained at the receiving tank for two hours and twenty minutes, watching all the time to see if the naphtha came, and, as none was received, he then notified an officer of the gas company, who immediately, by telephone, notified the defendant’s business office that no naphtha was being delivered, and the pumping was immediately stopped. About an hour thereafter the explosion took place. It does not distinctly appear how soon after the pumping commenced the naphtha reached the sewer, but gas was evolved from naphtha running in the sewer as early as 1 o’clock, and the several explosions took place, including the one in the building where the deceased lost his life, as early as about 3:30 o’clock in the afternoon. In view of the danger likely to arise to life and property from the use of a broken or defective pipe, in the locality where.this was laid, so that naphtha in considerable quantities might escape, a case was made for the consideration of a jury, with proper instructions as to the rules of law applicable to the case. When safety of human life is in question, a very high degree of care is required in conducting a lawful business. If naphtha in large quantities should be discharged at most any point on the line of the pipe it would be highly dangerous to property situated in close proximity thereto, and also to occupants of buildings in the immediate vicinity, as well as to individuals passing on the public streets. The learned trial judge instructed the jury in substance that the transportation of naphtha, by means of a pipe located on the line selected, was not, as matter of law, a nuisance, but it was for them to determine, from all the evidence in the case, whether it was a nuisance as a matter of fact, and, if they came to the conclusion that it was a nuisance, then the defendant was liable for any damage which came from the explosion, without regard to the question whether the defendant was negligent or not. In this connection he also instructed the jury that, if they came to the conclusion that it was not a nuisance, it did not necessarily follow that the plaintiff had failed to maintain a cause of action. We are unable to discover in the facts, about which there is really no dispute, those elements of danger which justified the court in submitting the case to the jury, for them to determine whether or not, as a matter of fact, the defendant was guilty of maintaining a nuisance by transporting naphtha through the pipe, or by leaving the pipe full of the same material when the pump was not in use. The pipe was in good order, and safe for the transportation of this substance on this line, and it was lawful for the defendant to engage in that business. There is no evidence showing that there was any leakage of naphtha from the pipe, or that gas escaped therefrom while naphtha was being pumped, or during the time the pumps were-not in use. These facts being conceded, we fail to discover any fact upon which the charge of maintaining a nuisance can be founded. It is no more-dangerous to life or property to convey naphtha, in a strong and secure pipe,, through a populous city, than it is to distribute manufactured or natural gas-by the same means. Gas thrown off from a body of naphtha is no more inflammable or explosive than coal gas, and either kind must be in some degree confined before the explosion will occur. The rule is of uniform application that while man may prosecute such business as he chooses(on his own premises, he has no right to erect and maintain a nuisance, to the injury of an adjacent proprietor, or of his neighbors, even in the pursuit of a lawful trade. Heeg v. Licht, 80 N. Y. 579.

A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and' renders the owner or possessor liable for all damages arising from such use. Wood, Nuis. § 1, and authorities cited. To constitute a nuisance for keeping in store articles in common use in a community, the substance must be of such a nature, and kept in such large quantity and under such circumstances, as to create real danger to life and property. This rule seems to be fairly deduct ble from the many decisions which have been made by the courts on. this subject. The fears of mankind will not alone create a nuisance without the presence of real danger. “ The well-founded apprehension of danger, which would alarm men of steady nerves and reasonable courage passing through the street, in the locality where the business is carried on, is enough to- show that something is being done which°ought to be prevented by condemning it as a misdemeanor.” Reg. v. Lister, 3 Jur. (N. S.) 570; People v. Sands, 1 Johns. 78; Myers v. Malcolm, 6 Hill, 292; Heeg v. Licht, 80 N. Y. 579. In such a case, the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application. In another part of his charge the learned judge instructed the jury that “if they should come to- the conclusion that the defendant was in the act of carrying on a nuisance, and also that this pipe was a sufficiently good pipe, but was broken by the act of a wrong-doer, under such circumstances as that the defendant had no right to expect that it would be broken, and under such circumstances that the defendant was not guilty of any negligence in not discovering that it was broken, but that it had every reason to believe that it had taken every precaution that a reasonably prudent man would have done to make this safe, and in fact had done so, if you come to the conclusion that this was the state of affairs, then, although the defendant was guilty of carrying on a private nuisance, it would not be liable in damages to the plaintiff.” These instructions were to the effect that if the defendant was maintaining a nuisance it was not liable if the pipe was broken by the act of a wrong-doer, if the defendant was not guilty of negligence in the particulars mentioned. But it does not cure the error, or leave it to the jury for them to say whether the defendant was guilty, or not, of maintaining a nuisance, but, for a reason which will be hereafter stated, it becomes unnecessary to consider how far the last instructions qualified those as given, relative to the defendant’s liability, if the jury found that" it was maintaining a nuisance. As an independent ground for a recovery it was submitted to the jury whether the defendant was guilty of negligence in failing to ascertain, by an actual inspection of the line of pipe, or by some other means, that it was broken, and unfit for use, before they commenced pumping on the 21st dayof December, orin that the defendant’s agent, Sweeny, who was stationed at the gas company’s tanks, was negligent in failing to give notice that naphtha was not passing through the pipe, in time to have prevented the escape of naphtha in sufficient quantities to be dangerous. Our comprehension of the case is that a case was made for the consideration of the jury on the question of the defendant’s negligence. Every fact and circumstance must be considered and reflected upon in determining the question submitted to the consideration of the jury. As the pipe was in a reasonably safe and secure condition up to the time it was broken by the act of a third person, the charge of negligence rests mainly, if not entirely, on the omission of the defendant’s agents and servants to do those things which, if done, would have disclosed the actual condition of the pipe before any considerable quantity of naphtha could have escaped. One test, for the purpose of considering whether the pipes were in order or not, was to have arranged that the pumps should liave been started before the stop-cocks at the receiving end were opened, and if that had been done the broken condition of the pipe would have been disclosed to the engineer at the pumping station immediately, as-the degree of resistance would have indicated that the naphtha was escaping somewhere on the line of the pipe. The failure of Sweeny to give notice to those in charge of the pumping station that no naphtha was being delivered into the receiving tank, immediately after the time agreed upon for starting the pumps, subjects him to the charge of being guilty of negligence which caused the death of the deceased. It was his duty to act upon the assumption that the pumps would be started at the time agreed upon, and that oil would be immediately discharged into the receiving tank, and, as none came through the pipe, it was an indication on which any prudent and reasonably cautious man would have concluded that the pipe was out of order. By use of the telephone in the gas company’s office, which was connected with the defendant’s office, he could have communicated with the engineer at the pumping station, informing him that no naphtha was being discharged into the receiving tank, in time to have averted the accident. The fact that the pipe crossed several streets, and fora portion of the way was laid under the track of a railroad which was in constant use, is a circumstance indicating that it was an act of prudence to make some sufficient tests to ascertain if the pipe was in a safe condition, immediately preceding the use of the same, for the transportation of a large quantity of naphtha. In face of all the facts and eireu instances, we think the question was properly submitted to the jury for them to determine whether the defendant’s agents engaged in operating the pipe line were guilty of negligence. The jury rendered a general verdict in the plaintiff’s favor of $5,000, and there was also submitted to them to answer this question, “ Was the naphtha which caused the explosion on the 21st day of December, 1887, by which John Lee was killed, permitted to get into the sewer by the negligence of the defendant?” which was answered in the affirmative. As the defendant’s negligence was established in the opinion of the jury, as indicated by their special verdict, the error in submitting the queston to the jury whether the defendant ¡was maintaining a nuisance should not prevail-for the purpose of reversing •the judgment, for the defendant’s liability was established irrespective of the question of nuisance. For the same reason, if there was any error of the court in ruling that the defendant was guilty of violating the provisions of chapter 773 of the Laws of 1865, regulating the storage and keeping of crude petroleum, or any of its products, within the corporate limits of any city within this state, should not prevail for the purpose of securing a new trial. The defendant’s counsel asked the court to charge the jury that if, at a time when Sweeny should reasonably have been required to give notice that no naphtha was coming, the discharge into the sewer was so great as to cause the disaster, this failure to report was not negligence, such as to authorize a verdict for the plaintiff. If the jury could, from the evidence, have determined the quantity of naphtha which in fact had at that time been discharged into the sewer, there is no evidence which would enable them to say that the quantity was sufficient to have caused the explosion. It is manifest that a considerable quantity must have been discharged from the pipe at the break before any would have been discharged into the sewer, by reason of the character of the earth which lay about the pipe where it was broken. It is wholly conjectural as to the precise "time when naphtha was first discharged into the ■sewer. We think that the proposition as stated was faulty, and properly rejected, for the reason that it was the duty of the jury to determine the question of negligence from all the facts and circumstances of the case, and there were others bearing upon the question besides the omission of Sweeny to give notice that naphtha was not being received at the tank. The defendant's counsel also asked the court to charge the jury that if they should find that the sole cause of the accident was the breaking of the pipe by blasting at Atkinson street, by the interference of third persons, without knowledge or notice on the part of the defendant, or any co-operating negligence on the part of the defendant, they must render a verdict for the defendant. We think it is plain that the defendant was not entitled to these instructions. It was a conceded fact in the case that the pipe became broken by reason of the interference of third parties, and without any actual knowledge or notice on the part of the defendant, at the time the pumping was commenced on the day of the accident, and the plaintiff seeks to maintain her right of action from facts and circumstances wholly independent of and distinct from those mentioned in the first part of the request. We do not need, therefore, to inquire in what sense the term “co-operative negligence” was used in the alternative part of the request. Exceptions were taken by the defendant to the reception and rejection of items of evidence which were considered by the special term, and held not to .be well taken, and we concur in this part of the written opinion of the learned judge, as printed in the case. Judgment and order affirmed.

‘ Dwiuht, J., concurs.' Macombeb, J., not voting.

Note by the Editor. The written opinion referred .to was filed December 28,1888, at special term, Ontario county, on a motion for a new trial, and is as follows:

“Rumsey, J. I shall consider no exceptions on this motion except those raised and argued on the brief of the defendant’s counsel, and those I will consider in the order in .which he spoke of them.

“The first exception is taken to the question asked of the expert witness Peckham as to the comparative explosiveness of naphtha and gunpowder. The objection taken was that the evidence was incompetent and immaterial. This objection raised no question as to "the competency of the witness to testify. Schwander v. Brige, 10 N. Y. St. Rep. 802. Nor is the propriety of the question to be determined by the fact that the .witness, in reply to it, gave an objectionable answer which he was not asked for. The remedy in that case is by a motion to strike out the testimony. Fowler v. Machine Co., 20 Wkly. Dig. 521. The ruling upon the exception must be made on the theory that the answer would have been responsive. In this case a responsive answer would have been that naphtha gas was or was not more explosive than gunpowder. Was this evidence material or competent? The question was as to the liability of naphtha gas to explode under certain conditions, and the effect of the explosion when it occurred. The witness had stated a good many facts with regard to it, from which the jury might learn the conditions necessary to exist before an explosion would take place. Any fact which would enable them to judge of the probability of the explosion of this gas, and of the force of the explosion, was clearly material; The jury were told by another witness the pressure in pounds which would be exerted by an explosion of the gas under certain conditions. There is no doubt that it would have been proper to show them the effect of the explosion by an actual experiment; the object being in each case to enable them to judge whether the force of such an explosion was sufficient to do the damage which was done to the mills. It was proper to allow the witness to illustrate the effect of the explosion of this gas by comparing it with the explosion of any substance, of the properties and force of which the jury were aware, as well as by the number of pounds of pressure of the explosion. Indeed, the former is much more likely to convey to any person an accurate idea of the force exercised. The explosive force of gunpowder is a matter of common knowledge. Every one knows the' effect produced by the ex plosion of a mass of that substance in a confined space. It is used as a means of comparison daily. To say that the explosion of any substance produces the same or a like effect as the explosion of gunpowder gives a more accurate idea of its power to the ordinary mind than to say that by the explosion it exerts a pressure of so many pounds to the square inch. There is a large class of cases in which language cannot give an exact idea of the fact sought, and one must resort to the comparison with things well known to enable another to form an accurate judgment. For instance, it is proper and usual, in speaking of speed, to speak of ‘ a moderate trot,’ or ‘ about as fast as a man can walk; ’ or, in measuring height, to say that a thing is ‘ about the height of a man; ’ or, in speaking of distance, to say that it is 1 about as far as from ’ one place known to the jury, or seen by them, to another. In all these cases the comparison with something of general knowledge is usual and proper. For the same reason it was proper to measure approximately the force of the explosion of naphtha gas by comparing it with another substance with which the jury were acquainted. There is no question as to the competency of the witness. Stevens v. Brennan, 79 N. Y. 354.

“It is suggested that the same class of evidence, when offered by the defendant, was excluded. The point is raised where Mr. Latimer was asked whether,he would regard crude oil as more dangerous than naphtha. This stands upon a different footing. The fact itself.is entirely immaterial, whether it be considered as asking for Prof. Latimer’s opinion, or as to the"fact of the danger of crude oil. The only question was the danger of naphtha. As a means of aiding the jury to decide whether the transmission of naphtha was or was not dangerous, the comparison was of no use, because they knew no more of crude petroleum, considered chemically, or with reference to the gases evolved by it, than they did of naphtha; and when they were told that one was more dangerous than, another they would still need instruction as to the absolute danger of crude petroleum, before being able to apply the comparison, or make it available to judge of the material thing, which was the danger of the transmission of naphtha. For this reason it. was not error to exclude this evidence as immaterial.

“The evidence of Mr. Kinchling was entirely immaterial. The question only asked for the knowledge of the witness,—which no one pretends was material,—and for that reason alone it was properly excluded. But, if it be construed as asking for the fact, it was properly excluded for two reasons: First. The question did not ask for thebest. evidence. That was the records of the executive board. The objection having been sustained upon a general objection, stating no grounds, it is not error, although the-ground upon which the ruling might be sustained is one which could have been obviated, had it been stated. The opposite counsel is not misled if he does not ask that the-grounds should be stated. Height v. People, 50 N. Y. 393, 395. Second. The fact was not material. The pipe was laid in the bottom of the Genesee Valley canal by the consent of the railroad company, which was in possession of the canal. No permission of the executive board, or of the authorities of the city of Rochester, was necessary to authorize the laying of the pipe. The defendant was not a wrong-doer by laying the-pipe, but by pumping naphtha through it. There was no offer to prove that the executive board consented to that use of the pipe, but it was practically conceded that such consent was not given. No consent was required to authorize the laying, and it was-not material whether it was given.

“The evidence of Neville was clearly immaterial. If it had been proposed to follow it with the proof of any fact which would have made the rejected evidence material, such offer should have been made. As it was not, there was nothing to show the materiality of the rejected evidence.

“The evidence of Moore was rejected, and the ruling is strongly attacked; but, irrespective of the question whether it was erroneous to reject the evidence, I do not think there was any harm done to the defendant. The object was to show that the pipe could only be broken by outward violence. It was not disputed that the pipe was so broken, and the charge to the jury was based entirely upon the theory that such violence caused the break. If the evidence had been admitted, its effect would have been to authorize the jury to infer, what was not denied, and was actually proved, that the pipe was broken by the blast let off in the sewer. If the evidence had been received, the fact would have been proved no more satisfactorily.

“The questions asked of Prof. Latimer as to the effect of a break in a gas-main do not require much consideration. The counsel for the defendant concedes that the hypothesis was not based upon any facts which appeared in the case, and that disposes of the exception. There was no break in a gas-main, and the question of the flow of gas through such a break was a mere abstraction, of no importance in this case.

“The next error alleged is the refusal of the court to charge a proposition presented. As to the particular proposition, the fact which lay at the foundation of it is that, at the time when the watchman Sweeny should have given notice that the naptha did not run into the tank of the gas company, the discharge into the sewer had already been so great as to cause the disaster. Of this there is no evidence on which the jury might have found either way. Por that reason there was no error in the refusal to_ charge exactly as requested. De Luce v. Kelly, 5 Wkly. Dig. 33. After reading again what was said by the court in reply to that request, I still think that it covered all that the defendant had a right to expect on that subject, and that the exception to the refusal to charge was not well taken.

“The last exception argued is that one taken to the charge of the court with regard to the storing or keeping of the naphtha. The jury were charged that the defendant was keeping or storing naphtha in a way different from that allowed by the statute. To this, exception was taken. It is claimed that the naphtha kept in the tank, and especially that kept in the pipes, was not ‘ stored,’ within the statute. The statute forbids, not only the ‘storing,’ but the ‘ keeping on sale,’ of refined petroleum, except in a certain way. It then gives the regulations for ‘ storing or keeping ’ naphtha or benzine, of which it forbids the keeping of more than ten barrels in a place over a cellar, or more than three barrels in a cellar or basement. It then provides that ‘ crude or refined petroleum ’ may be stored in a certain way. There is a clear distinction made in the statute between crude petroleum and naphtha and benzine. The regulations for storing naphtha and benzine are express and clear, and they imply a prohibition against storing it in any other way than is therein prescribed. Landers v. Prank St. M. E. Church, 97 N. Y. 119, 124. The defendant says that the keeping of naphtha in the pipe was not ‘storing’ it. But the statute speaks of ‘kept’ and ‘ stored.’ Even if the word ‘ stored ’ alone was used, this way of keeping naphtha in a pipe was within the statute. It seems that the naphtha was allowed to run into the pipe, and was there kept until it was required to be used at the gas company’s tank, when it was forced into that tank. As soon as a sufficient quantity had been pumped into the tank at the gas-works, the stop-cock was turned, and the pipe left full of naphtha until a new supply was required in the gas company’s tank. During the time that elapsed between the several pumpings the naphtha was left in the pipes. The word ‘ store ’ is defined by Johnson and Webster to mean, ‘ to stock against a future time.’ It is defined in this state as ‘ the keeping of merchandise in safe custody, or where the keeping is the principal obiect of the deposit.’ O’Niel v. Insurance Co., 3 N. Y. 122,127. In 'the case last cited it is used in distinction from keeping for consumption or sale in the course of business at the place where it is kept. The naphtha was kept in this pipe to be delivered as wanted. It was kept, as appears from the evidence, from 15 to 30 days, being pumped into the gas-tank once a month in the summer, and twice a month in winter. While so kept, it was not used for any purpose. If the keeping had been in a tank, there would have been no question that it was a ‘ storing,’ within the statute. The fact that the receptacle, holding some 3,000 gallons, was a pipe, and not a tank, does not alter the case. The cases cited by the defendant were actions on policies of insurance in which the insurance company sought to insist upon the forfeiture because certain prohibited articles were stored in an insured building which had been burned. The articles were kept for sale or temporary use, and the court held that was not a ‘ storing,’ within the policy. They adopt the definition of ‘ storing ’ given above', but say that the cases before them were not within it.

“But it is said that the uncontradicted evidence showed that the pipe had been empty for two weeks when the disaster occurred, and for that reason the defendant could not have been storing naphtha in it. That is just the trouble. The defendant had attempted to keep naphtha in this unauthorized way in this pipe, which broke, and the naphtha ran out and caused the explosion. The disaster was directly due to the attempt to keep naphtha in the pipe. Suppose there had been at Atkinson streeta tank with a capacity of 2,885 gallons, (the capacity of this pipe,) which had been kept full of naphtha for periods of from 15 to 30 days, and that from this tank naphtha had been allowed twice a month to run into another one, the first being kept full by pumping. If a hole had been broken in the bottom of the first tank, and all the naphtha pumped in had run thence into the sewer, no one would doubt that the defendant had been violating the statute, and that such violation was the cause of the filling of the sewer with naphtha. I can see no difference between the supposed case and the one under consideration. The object of the statute was to prevent the accumulation of large quantities of naphtha within the limits of a city. That object is defeated if, as in this case, a forbidden quantity is so kept that, upon the breaking of the receptacle, it may run out and do mischief, and the statute is violated as much whether the vessel is whole or broken, if the result is the unlawful accumulation oí the dangerous fluid. But the question is whether the defendant, in keeping the pipe full of naphtha, was 1 storing ’ it, within the statute. 2 Rev. St. (7th Ed.) 1295. For the reasons above given I think that it was, and that the charge to that effect was not error.

“The defendant alleges no other errors. I think none of those alleged are in fact erroneous rulings, and that a new trial must be denied, with costs. ”  