
    Fausto Cosulich et al., Resp’ts, v. The Standard Oil Company of New York, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Negligence—Presumption of—Explosion.
    Plaintifl’s vessel was set on fire by the explosion of a lighter caused by ourning oil which flowed through a pipe from defendant’s premises after an explosion of a boiler or tank thereon. The only evidence as to the cause of the Are or defendant’s negligence was simply that the explosion occurred and that the tank was seen to shake just prior thereto. Held, that the parties having no contractual relations with each other, proof of the mere fact of an explosion did not raise a presumption of negligence on defendant’s part, and that the motion to dismiss the complaint should have been granted. o
    Appeal from judgment of the general term of the New York Superior Court, entered on an order affirming a judgnent of the trial court in favor of the plaintiffs.
    The action was brought to recover the damages sustained by the burning of plaintiffs’ vessel. The ground assigned for the defendant’s liability to respond to the plaintiffs was that the injury was wholly due to defendant’s negligence.
    The defendant at the time of the burning owned and managed a petroleum refinery on Newtown Creek in the county of Kings. And the plaintiffs’ vessel was lying at the wharf (next) adjacent thereto. The oil within defendant’s inclosure got on fire, and a quantity of it while burning flowed down a pipe which was connected with a lighter laden with petroleum moored at the defendant’s wharf; the pipe was used by the defendant in pumping oil from vessels into the refinery. The lighter at once exploded and burning oil and sticks therefrom were thrown upon the plaintiff's’ vessel, which was about twenty feet distant, setting it on fire. The damages resulting are stipulated to have been $15,000.
    The only evidence relating to the supposed cause of the fire, and the alleged negligence of the defendant, was presented by the plaintiffs and is here recited.
    Ernest Berger, a plumber, then employed in a factory immediately adjoining the defendant’s works, testified: “I was sitting in the front office * * * and just across the street was a boiler, a still or agitator boiler, I don’t know what you call it; I don’t know what oil yards call it; I never worked at oil yards; and when I looked out I see this boiler commence; the first thing I heard a little grumbling, a growling in the air, and at the same moment I see the boiler commence to wobble; to shake; it gives a big explosion and the men ran out and I followed them * * * and that explosion came and upset our factory; it threw me down and the same moment when I turned again it gives out much dust; the whole building was afire, the whole front, the whole windows; everything was on fire and the whole street was one burning fire of oil; well, how the oil got on fire I can’t tell; the agitator boiler or tank was an iron structure standing above the wall; * * * it was an upright tank, an iron tank, and it was, if I am not mistaken, about ten feet in diameter; * * * it was round and painted black; and it was this still or agitator, or boiler, that I saw shaking.”
    Hicolo Grasbaek, the third mate on plaintiff’s vessel, testified: “I was inside my cabin, sitting on my box, and when I was inside I saw a flash, and at the same moment all at once an explosion and whistle blowing. The whistle was, I think, from the steam engine in the yard.”
    When plaintiffs rested the defendant asked for a nonsuit, which was denied. Thereupon, and without giving any evidence, the defendant rested. The jury found a verdict in favor of the plaintiffs.
    
      Levns¡,Cass Ledyard, for app’lt; Lorenzo Ullo, for resp’ts.
    
      
       Reversing 14 N. Y. State Rep., 713.
    
   Parker, J.

We are of the opinion that the evidence presented by the plaintiffs failed to establish a cause of action against the defendant, and consequently that the trial court erred in denying the motion to dismiss the complaint made after plaintiffs had rested their case.

The fact that the injury sustained by'the plaintiffs may have been a direct result of the fire which originated upon the premises of the defendant, does not of itself render it liable to respond in damages therefor.

The defendant was not maintaining a nuisance. Its business was lawful and in its conduct the law does not impose the obligation of saving harmless others from the consequences resulting from the occurrence of inevitable accident, but rather burdens it simply with the duty of using reasonable care and caution to save others from injury. If it omitted that duty and failed to •observe that ordinary care which was incumbent upon it, then be•cause of such neglect it became legally chargeable with the damages directly resulting therefrom, but not otherwise. Losee v. Buchanan, 51 N. Y., 476.

As the existence of negligence is an affirmative fact to be •established by him who alleges it as a foundation of his right of recovery, it was incumbent upon the plaintiffs to point out by evidence the defendant’s fault, for the presumption is, until the •contrary appears, that every man has performed his duty. This rule has been frequently applied in cases where a fire has spread over and upon the lands of an adjoining owner to his damage. Clark v. Foot, 8 Johns., 421; Stuart v. Hawley, 22 Barb., 619; Lansing v. Stone, 37 id., 15 ; Calkins v. Barger, 44 id., 424.

It has likewise been enforced against persons seeking to recover for damages sustained by fires originated from locomotives in operation upon railroads. Collins v. N. Y. C., 5 Hun, 503; 71 N. Y., 609. But the plaintiffs insist that while negligence cannot be inferred from the fact that the fire originated upon the premises of the defendant, it may be presumed from the proof of an explosion.

It is difficult to discover a reason for holding that proof of the occurrence of a destructive fire in defendant’s premises does not raise a presumption of negligence, while proof of the mere fact of an explosion does. It has been said that there is a general disposition among men to preserve their property and escape liability, and that ordinarily these motives will secure that degree of care .and caution which the safety of the public demands, and hence the presumption of duty performed, which in cases of fire will protect him until the facts be proven from which negligence can be inferred.

For precisely the same reason he is entitled to the benefit of such presumption in the case of an explotion where no contractual relation exists. And the plaintiff must go one step further and prove the facts from which it can be legitimately inferred that either in construction, repair or operation he omitted that reasonable care and caution which he should have observed. As this position is supported by authority reference will be made to a few of the cases.

In Losee v. Buchanan, supra, the action was for damages done to the buildings of the plaintiff by the projection onto his premises of a boiler, resulting in serious injury to several buildings.

. The court in a well considered opinion delivered by Judge Earl, held, first, that the plaintiff could not recover in the absence of proof of fault or negligence on the part of the defendants; second, that if the explosion was caused by a defect in the manufacture of the boiler he is not liable, in the absence of proof that such defect was knowy to him or was discoverable upon examination or by application of known tests.

That case would seem to be controlling here. The' plaintiffs proved simply an explosion. The inference is, perhaps, permissible that the subject of the explosion was the receptacle described as a "boiler, tank, still or agitator, although no witness pretends to assert that it was destroyed or torn down. If it may be inferred, that it was the tank, the evidence is silent as to the cause.

It does not point to unskillfulness or carelessness on the part of the employees having the tank in charge; nor suggest defects in construction; or omission to keep in repair, and therefore falls, far short of the requirements which the court asserted, in the Losee case, to be essential to a recovery.

In Walker v. Chicago, R. I. & P. R. Co., 71 Iowa, 658, the plaintiff’s property was injured by the explosion of a quantity of dynamite then on a car standing in defendant’s yard. The complaint averred that the dynamite was not properly protected ; that the fire had caught from passing engines; -and that the "car was negligently permitted to stand in an improper place. There was no evidence that the fire had caught because the engines were defective in their machinery to prevent fire escaping therefrom; that the dynamite was not properly protected or stored in an improper place.

The judgment rendered in favor of the plaintiff was reversed, the court holding that, “ the relation between the parties to the action is not such that the law presumes negligence in the defendant by the mere fact that the plaintiff’s property was injured. The. burden was upon the plaintiff to show that the place, where the car was stored, was an improper place. All the light the jury had on this subject was that the car exploded, and the plaintiff’s property was injured.”

In Huff v. Austin, 46 Ohio St., 386, the plaintiff, as an employee of Fay & Go., was at work on the premises of the defendants, in helping to set up a saw mill which the defendants had purchased of Fay & Oo. While so at work, a steam boiler, owned and used by the defendants on the premises, to run the saw mill, exploded and injured the plaintiff.

The plaintiff had a verdict which was reversed, the court holding that proof of the mere fact of an explosion does not raise a presumption of negligence on the part of the defendants. .

This precise question was carefully considered by the court of last resort in Tennessee in Young v. Bransford, 12 Lea, 232. Plaintiff’s intestate while in defendants’ grist mill was killed by the explosion of defendants’ boiler. The trial court, in his charge to the jury, said : “ When the killing is proved to have been done by the explosion of defendants’ 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 proofeis upon the plaintiff to make out her case in the first instance, when 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 to be error, for which a reversal was had. The ' principles stated and authorities cited establish, as we think, that the burden of proof resting upon the plaintiff was not well borne by him when he rested his case, and we should be content to end the discussion at this point, but for the argument of the learned general term, which may be profitably considered further.

The court failed to recognize a distinction, which has been carefully guarded by the courts of this state, as well as by nearly all other jurisdictions in this country, between actions founded in negligence, where a contract relation existed between the parties, and those in which the defendant owed no other duty than to use such ordinary care and caution as the nature of his business demanded to avoid injury to others.

Its omission to do so may have been induced by the opinion of the court in Rose v. Stephens & Condit Trans. Co., 11 Fed., 438, which was cited with approval. In that case it said that “ the presumption originates from the nature of the act and not from the nature of the relations between the parties.”

This assertion does not seem to have been well considered. In actions founded on negligence the onus of establishing it rests upon the plaintiff.

In determining whether he has sustained this burden it is necessary in certain cases to inquire whether an inference of the fact of negligence can be drawn from other facts proven. When it can be, then it is said that a presumption of the fact of negligence is permissible. And of necessity it embraces not only the doing or omission to do the thing complained of, but also the relations of the parties, i. e. whether in that which he did or omitted to do he failed to discharge some duty owing to the plaintiff. Beck v. Carter, 68 N. Y., 283, furnishes an illustration in point. It is there held that “ where the owner of land expressly or by implication invites others to come upon his premises, if he permits anything in the nature of a snare to exist thereon, he is responsible for an injury resulting therefrom to one availing himself of the invitation. But if he gives but a bare permission to cross the premises, the licensee takes the risk of accidents in using the premises in the condition in which they are.” In both cases the act is the same, but in the one case he owes a duty not to maintain a snare, in the other not. In view of the relations of the parties he is held to be negligent in the first case but not in the second.

Sometimes, it is true, the duty which the defendant owes to the plaintiff is of such a nature that proof of the happening of the accident under certain circumstances and given conditions will be of such legal value as to afford presumptive evidence of negligence, and cast upon the defendant the burden of explanation.

This rule has been applied to the earner of passengers, especially in conveyances propelled by steam, where the consequences of an accident are frequently fatal to human life, and the public interests require that in such cases the carrier shall use every precaution which human skill and foresight can provide to prevent accident and its results. Even in those cases there must be reasonable evidence of negligence before a defendant can be called upon to relieve itself from ttie presumption of negligence. “ But when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen, if reasonable care is used, it does in absence of explanation by the defendant afford sufficient evidence that the accident arose from want of care on its part.” Breen v. N.Y. C. & H. R. R. R. Co., 109 N. Y., 297; 14 N. Y. State Rep., 835; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 562.

Bat “it is believed,” says Mr. Thompson, “ that it is never true except in contractual relations, that the proof of the mere fact that-the accident happened to the plaintiff, without more, will amount to prima facie proof of negligence on the part of the defendant.” 2 Thomp. Meg., 1227.

This rule is recognized in Huff v. Austin, supra, the court saying “ whether the defendants can be held liable for the injury caused by the explosion of the boiler owned and used by them on their own premises, without affirmative proof of negligence beyond the mere fact of the explosion, is not to be determined by the rule of negligence governing the common carriers of passengers and goods.”

To the same effect is the reasoning of Mr. Justice Field in The Nitro Glycerine Case, 15 Wall., 524.

The supreme court of Indiana recognizes that carrier cases constitute an exception to the general rule, in The Wabash, St. Louis & P. R. Co. v. Locke, 2 Am. State, 193. After a statement of the extent of the care which the defendant was bound to observe for the protection of the plaintiff and the public, the court continued : “ The case, therefore, stands upon a different footing from the cases which involve the duties of carriers who contract to-carry passengers safely to a particular destination. In such cases proof of an injury ordinarily establishes a prima facie case of negligence in favor of a passenger, which the carrier must overcome.”

Mow the cases cited by the general term in which the rule res ipso loquiter has been enforced against defendants, are nearly all passenger cases, and therefore do not support the plaintiffs’ position. Weidmer v. N. Y. Elevated R. Co., 41 Hun, 284; 2 N. Y., State Rep., 622, is an exception, but that case has since been reversed by this court. It being held that the rule res ipso loquiter was not. applicable to the situation presented. 114 N. Y, 462; 23 N. Y.State Rep., 859.

Mullen v. St. John, 57 N. Y., 567, the other exception requiring notice, was for damages sustained by the falling of a brick wall upon the plaintiff while passing on the sidewalk.

Mow, while the court discussed the case from the stand point, of presumptions in the law of evidence, it will be observed that there was far more than the mere happening of the accident which was held to give rise to it in that case. There were certain conditions proven, which, taken in connection with the fall of the wall, permitted an inference of fact that the defendant was negligent. Buildings properly constructed do not fall without adequate cause. So the plaintiff to establish his cause of action proved, 'first, that the wall did fall, and, second, that there were no special circumstances of storm or violence to produce that re-suit, and the court held that the falling under the circumstances and conditions proved raised a presumption of negligence.

It seems to be apparent that the rule res ipso loquiter cannot be invoked in support of the judgment under review.

If it could be, it would in practical effect subvert the hitherto well settled law that a man may upon his own lands build factories and dams and employ the use of machinery without liability for any damage which may accidentally and unavoidably ensue to his neighbor. For it would necessarily result in making him in effect the insurer against injury happening from the explosion of boilers or the breaking of machinery upon his premises.

Steam and machinery are now so universally and usefully employed in factories, and upon farms, as to make it the part of wisdom not to relax the long established rule that he who alleges injury sustained- through the negligence of his neighbor, with whom he has no contract relation and who owes to him no other duty than that he shall observe reasonable care to prevent injury, must prove the facts from which an inference of the particular act of negligence charged can be drawn.

The judgment should be reversed.

Judgment reversed and new trial granted, costs to abide the event.

All concur, except Bradley and Yank, JJ., who concur in result. ___  