Cleveland, C., C. & St. L. Ry. Co. v. Ballentine
84 F. 935
7th Cir.
1898
Check Treatment
JENKINS, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

We dismiss without remark the consideration of the second and third counts of the declaration, because there is entire absence of evidence to sustain the allegation of the second that he was upon the highway at the time of this injury, or of the third that the servants of the company represented to him that there was no danger, or that the tanks contained cotton-seed and Hack oil, and would not explode. The first and fifth counts will be considered together, and the fourth count by itself.

We ruled in Goodlander Mill Co. v. Standard Oil Co., 24 U. S. App. 7—12, 11 C. C. A. 255, and 63 Fed. 401, that “it is not every one who suffers loss from another’s negligence who may recover therefor. Negligence, to be actionable, must occur in breach of a legal duty arising out of contract or otherwi.se, owing to the person sustaining the loss. Kahl v. Love, 37 N. J. Law, 5; Bank v. Ward, 100 U. S. 195. Mr. Wharton defines ‘legal duty’ to be ‘that which the law requires to be done or forborne to a determinate person, or to the public at large, and as correlative to a right vested in such determinate person or the public at large.’ Wliart. Nog. (2d Ed.) § 24.” We are to deal with legal, and not moral, obligations. We have therefore to inquire, first, whether, upon the assumption that there was no contractual relation between Ballentine and the1 Railway Company, there was in the distressing occurrences of this conflagration violation of any legal duty owing by the former to the latter, operative to his injury as a proximate and natural cause of that injury. The collision and the resulting fire were caused by the‘misplacing of a switch, presumably the negligent act or omission of a servant of the Railway Company. That negligent act or omission, however, was not in breach of any duty owing to Ballentine, and as to him was innocuous, he being two miles away at the time and unaffected thereby. He came upon the scene afterwards, and while the conflagration was in progress. Tie went upon the grounds of the Railway Company where he had no right to be, and going there, at best, as a mere licensee, he was bound to take things as he found them, and he assumed the risk of the situation. Elevator Co. v. Lippert. 24 U. S. App. 182, 11 C. C. A. 521, and 63 Fed. 942. So it is held that firemen entering upon premises to extinguish a conflagration and to save property do so, not by permission or invita*938tion of the owner, but under license of the law, and they also must take the risks as they find them. Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113; Gibson v. Leonard, 143 Ill. 182, 190, 32 N. E. 182. Ballentine went upon the grounds of the Bailway Company impelled by natural curiosity. The danger was obvious. There was no concealment of explosives. The peculiar construction of the tanks declared the character and quality of their usual contents. We held in Goodlander Mill Co. v. Standard Oil Co., supra, that petroleum oil is not a dangerous agency, within the rule that he who uses it does so at his peril, and must respond to the injuries thereby occasioned not caused by external natural occurrences or by the interposition of strangers. It is dangerous when, in considerable quantity, it is brought in contact with fire. This is matter of public and general knowledge, of which no American schoolboy of the age of 15 years can be presumed to be ignorant, and knowledge of which seems only to be ignored by the stupid servant who, in spite of repeated warnings, pours the fluid upon the fire, as we are periodically advised by the press. The scene itself was a signal of danger. The hissing, roaring, escaping gas should have proven a sufficient warning. It is impossible to credit the statement of Ballentine that he understood the tanks were empty. The obvious situation showed that that could not be so. The case, therefore, so far as presented by the first and fifth counts of the declaration, and by the evidence to sustain them, was this: That Ballentine, impelled by curiosity to witness a great conflagration, went upon the grounds of the Bail-way Company, to the scene of it, in the face of obvious danger of explosion. He went without inducement or invitation, without legal right, and assumed the perils of the situation. He vohintarilv and negligently exposed his person to danger. “Volenti non flt injuria.” The Bailway Company owed to him no active duty, — only the duty to abstain during his presence on the premises from positive wrongful act which might result in injury to him. It was not bound to remove the burning cars to another part of its yards, either in the discharge of any duty towards him, or, so far as the record discloses, in discharge of duty towards any one. All was done that could reasonably be demanded when general and repeated warnings were given of danger from explosion. The company was not in duty boupd to engage a constabulary force to drive the crowd from its premises. We perceive no grounds in the allegations of the first and fifth counts, or in the evidence produced to uphold them, upon which Ballentine could rightfully recover for the injury he sustained.

It is urged that under the fourth count this judgment can be upheld because Ballentine was employed to assist in the removal of the stock pens, and he, being ignorant of the qualities of petroleum, was not previously warned of the danger, but that the Bailway Company assured him that the contents of the tanks were nonexplosive. It might suffice to say that we are of opinion that there is no evidence to sustain the finding that he was employed by the Bailwav Company. In the excitement of a great fire, at the suggestion of one who had no connection with the Bailway Company, Ballentine *939accompanied Ms cousin to assist in removing certain structures. He was a volunteer. His act was doubtless impelled by generous and laudable motive to assist in preventing the spread of the fire, as at every lire volunteers are not wanting to assist in staying the ravages of a conflagration. Assuming, however, that he may be deemed a servant of the company pro hae vice, we fail to observe any failure of duty upon the part of the Hallway Company. As we have said, the danger was obvious, and it certainly cannot be that in the heat and excitement of the occasion it was tlie duty of the Hailway Company, by its officers, to ascertain if each volunteer was possessed of knowledge common to all, and to carefully instruct each person, whom it might permit to assist, in the properties of petroleum oil and of its liability to explosion before it allowed him to engage in the work of removing the structures. If Ballentine can he treated as a servant of the company for the particular work he did, he entered into the service, subject, at least, to its obvious perils. There is no evidence of any representation to him that the contents of the tanks were not of a dangerous or explosive character, or that no explosion need he apprehended. He states that he understood the tanks to he empty. He does not state from whom he obtained snch information, and, as we have observed, such information was opposed to the manifestations of his own senses of sight and hearing. We are of opinion that the court below should have directed a verdict of not guilty. The judgment will be reversed, and the cause remanded, with directions to award a new trial.