Harper v. Standard Oil Co., 78 Mo. App. 338

Harper v. Standard Oil Co.

78 Mo. App. 338 | Mo. Ct. App. | 1899

BOND, J.-

-This suit is for damages for the maintenance by defendant of one gasoline tank, and six coal oil tanks on its grounds adjacent to the dwelling house of plaintiffs, which are alleged to contain gasoline and coal oil and to be liable to ignition from the sparks of the engines of two railroads, whose tracks abut the grounds whereon defendant has placed such structures, thereby endangering plaintiff’s *343property, decreasing its rental and salable value, and affecting them with apprehension of injury to themselves and their property. The answer admitted the corporate capacity of defendant, denied the other allegations of the petition. There was a trial, at the end of which the court sustained a demurrer to the evidence. Plaintiffs took a nonsuit with leave and appealed from the ruling of the court to set it aside.

The correctness of that ruling is the only matter for review. Plaintiffs’ evidence tends to prove that they owned a dwelling house situated on an adjoining lot to defendant’s premises, and about seventy-five feet distant from a gasoline tank, which was erected by defendant in 1893, at which time it also erected the other tanks referred to. Previous to that date certain tanks of defendant situated in the same neighborhood had been destroyed by fire. The evidence further showed that in 1893, plaintiffs rented their dwelling house and moved to their farm three or four miles distant, where they have since resided. Mrs. Cinderella Harper, one of the plaintiffs, testified as follows:

“At the time of the burning of the Standard Oil Works, was living in the property described in the petition in this cause. My husband, myself and son, 13 years old, composed the family. At the time we purchased the property, we paid $1,100 for it. We have since changed the house on the inside and built an addition to it, making it worth something near $1,400. We moved there in August, 1893; and the fire occurred that fall. There is a great deal of difference in the location of the tanks from what they were before the fire. I would take the distance of the nearest tank to my house to be about 75 feet; that is the gasoline tank. You could smell it very plain when passing, when it was leaking. It was leaking on the side next to my house. There was nothing there to catch the dripping. It just dripped on the ground. The effect of the proximity of these works to our residence was that we wanted to get away as quick as possi*344ble; we were afraid it would catch fire again and destroy the property and may be our lives; our 13 year old boy was perfectly wild about it; he was afraid he would get burned up, and we moved on a farm in Ralls county. We moved out because we did not want to live there so close to those tanks. I am acquainted with the market value and rental value of property in Oakwood. The difference in the market value of that property in its present condition, in close proximity to the Standard Oil Works, and if they were entirely away, would be two thirds. I mean it is only worth one third of what it would be if that property wore away from there. The difference in the rental value would be one half. The property is rented to an employee of defendant for $7 per month. With the defendant’s works away from there, it would rent for $12 per month. We had no other applicant.”

The tanks in question were used for the storage of gasoline and coal oil. While their contents are inflamable they are not spontaneously combustible, and can only be ignited by extrinsic agencies. No complaint is made in the petition of the omission of noisome or unwholesome smells. The only elements of danger claimed are those attributed to danger from fire. On this- point the evidence is that prior to the erection of the present tanks in 1893, others in the same neighborhood had been destroyed by fire, and that two lines of railroad pass within fifty and one hundred feet of the tanks, over which cars are constantly running. It is not believed any well considered case holds that the storage of gasoline and coal oil in suitable tanks constitutes a nuisance per se. Things which are not in themselves nuisances can only become such by some neglect in the manner or locality of their use, hence if there is any evidence in this record tending to prove negligence on the part of defendant in the storage of said substances, i. e., in the construction or location of its reservoirs whereby plaintiff’s property was damaged, a cause of action in their favor would at once arise. In considering this subject the evidence need only be discussed so far as it *345relates to the probability of the destruction of the property of plaintiffs by fire communicated from the tanks of the defendant, tbat being the only ground of complaint alleged in the petition. All tbat appears on this subject in the record is the propinquity of the tanks to plaintiff’s property, a distance of about seventy-five feet, and to the main tracks of the two railroads, a distance of fifty and one hundred feet, respectively. There is no evidence whatever tbat the tanks are not so constructed as to prevent ignition from flying sparks or embers from passing locomotives, or tbat they are not guarded from such dangers by competent watchmen. Oonceding for the argument tbat if the tanks were improperly exposed they would be likely to take fire from passing engines, tire difficulty remains tbat there is no substantial evidence in the record showing tbat they were left in tbac condition. It follows, under this state of the proof, tbat there was no reasonable ground of apprehension of destruction of plaintiffs’ property by fire communicated from passing trains, and this being so it is further apparent tbat defendant was not guilty of negligence by the mere act of locating its nearest tank seventy-five feet from plaintiffs’ dwelling. It bad the absolute right to the reasonable use of its own property. Berlin v. Thompson, 61 Mo. App. loc. cit. 241. There is no evidence in this record showing tbat in constructing the tanks complained of it did anything calculated to excite just apprehension of fire in the minds of persons of normal nervous sensibility. Powell v. Furniture Co., Book 12, L. R. A., p. 53. Neither does the mere fact tbat injury to the rental value of plaintiffs’ property ensued render defendant liable, in the absence of any showing of negligence, which, as has' been seen, was indispensable to entitle plaintiffs to recover under the facts in this record. Gibson v. Donk, 7 Mo. App. 37.

Finding no reversible error in tbe ruling of tbe circuit court sustaining tbe demurrer to tbe evidence, its judgment is affirmed.

All concur.