
    Fausto Cosulich et al., Resp’ts, v. The Standard Oil Company of New York, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 1, 1888.)
    
    1. Negligence—When presumption of defendant’s negligence arises.
    Where the evidence showed that an oil tank in the oil refinery belonging to the defendant exploded, and that just prior to the explosion there was a rumbling noise in the air and the tank began to shake and presented the appearance of an over-heated- or an over-pressured body,- ■ Held, that in the absence of any explanatory evidence on the part of the defendant, a presumption of negligence of the defendant or its employees in charge of the tank arose, and that there was no error in charging the jury on. this point, “ 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 defendant used the ordinary care, which the law requires of them.”
    3. Same—Proximate or remote effect—Question for jury.
    
      Held, further, that it was proper, under the evidence in the case, to submit the question to the jury, whether the damage sustained by the plaintiff in conseqence of the explosion and subsequent Are was the proximate or the remote effect of the explosion in the defendant’s oil yard. Ehrgott v. Mayor, 06 If. Y., 364, followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of the jury, and from an order denying a motion for a new trial.
    
      Ullo, Ruebsamen &Hubbe, for resp’ts; Carter &Ledyard, for app’lt.
   Dugro, J.

In this action an appeal is taken from a judgment in favor of the plaintiff, entered upon a verdict of a jury, and an appeal is also taken from an order, denying a motion for a new trial.

The action was brought by the plaintiffs to recover dam • ages sustained by them through the partial destruction of their vessel, the bark “Phison,” by a fire, alleged to have been caused by defendant’s negligence.

The material allegations of the complaint are as follows: First. That the defendant at the time of the accident, owned and managed á petroleum refinery in Newton Creek, and the plaintiff’s vessel was then lawfully lying for the purpose of receiving a cargo, at the wharf next adjacent to the defendants said oil works on Newton Creek, to wit, at wharf of the the Devoe Manufacturing Co.

Second. That although the defendants well knew that said business of refining petroleum was dangerous, and neces • sitated 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 defendant’s 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 defendant’s negligence, and that the injury to plaintiff’s vessel was the ' result, solely thereof. •

The defendant in its answer admitted “that it owned and managed a..petroleum refinery at Newton Creek,”■ denied that it was negligent in the construction and management of its works, and denied that there resulted from any negligence or 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; 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 plaintiff’s evidence alone, the defendant, after the denial of its motion for a non-suit, having declined to put in any evidence in its 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 defendant used the ordinary care which the law requires of him.”

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 purpose 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 an 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 questions put to the witness, Berger, and his answers 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 witness 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 come 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 establised 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 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 existed.

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., 572), the former case is explained as not affecting the presumptions which may arise from the fact of certain occurrences, for Dwight 0., 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, and Condit Trans. Co., 11 Fed. Rep., 438.

' So it appears to me that an explosion unexplained, under the circumstances shown, of an over-heated, or an over-pressured 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, 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 or law which makes the fact of certain occurrence, prima facie evidence of negligence.

'In Scott v. London and St. Katharine Docks Co. (3 Hurl. & Gol., 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 usa 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 Transportation Co. v Downer (11 Wall, 129).

To the same effect it has been held in Mullen v. St. John (57 N. Y., 567); Losee v. Buchanan (51 id., 476), Gerlach v. Edelmeyer (47 Sup. Ct., 292; affirmed in 88 N. Y, 645); Caldwell v. New Jersey Steamboat Co. (47 N. Y., 282); Rose v. Stevens & Condit Transportation Co. (11 Fed. Rep., 438); Wiedmer v. N. Y. Elevated R. R. Co. (2 N. Y. State Rep., 622); Lyons v. Rosenthal (11 Hun, 46).

It is needless to discuss whether or no cases may arise where it would be proper, from the nature of the occurence, 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 rules 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 occurrences, and no fair reasons to doubt that negligence occasioned the explosion, is apparent from the facts known.

The case of Young v. Bransford (12 Lea [Tenn.], 232), 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 as declared upon the case of Rose v. Stephens & Condit Transportation 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 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 damages sustained by the plaintiff was the direct and proximate result of the defendant’s negligence,, or only a remote result.

The Case of Ryan (35 N.Y., 210) held that from the fact® 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 the opinion that the learned judge'properly left the question as to whether the injury complained of was a proximite consequence of the negligent acts of the defendant, to the jury. Webb v. The Rome v. W. & O. R. R. Co., 49 N. Y., 264.

The best statement of the rule of law was 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 be 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 was 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 an appeal.

Sedgwick, C. J.j and Truax, J., concur.  