280 Mass. 161 | Mass. | 1932
These three actions of tort were tried together. They are brought to recover damages for injury to property of the plaintiffs by fire alleged to have been caused by the ignition on property not belonging to the defendant, by sparks or flames from a gasoline engine operated on property of a third person, of an inflammable petroleum product called varnolene discharged into Saugus, Branch Creek by the defendant. These actions were tried with other actions founded on negligence brought by the same plaintiffs against the operator of the gasoline engine, which are not now'.before us. The declaration in each of the cases at bar contained three counts, the first alleging that the defendant negligently permitted varnolene to escape into the creek, the second alleging that the defendant created a nuisance by allowing the escape of varnolene into the creek, and the third alleging that varnolene was an inherently dangerous substance which the defendant was bound at its peril to prevent from escaping. In each case the first and second counts were submitted to the jury and verdicts were returned for the defendant, and the trial judge directed a verdict for the defendant on the third count. Exception by the plaintiffs to that direction presents the question to be decided.
It is not necessary further to recite the allegations of the third count in the several declarations. The question is whether the evidence would support a finding on it in favor of the plaintiffs. That question is to be considered dissociated from negligence or nuisance for which the defendant was responsible, because those grounds of liability were covered by the other counts and it is to be presumed that
There was evidence which, although sharply contradicted in some essential particulars, nevertheless, in its aspect most favorable to the plaintiffs would have supported findings that the plaintiffs owned or occupied as tenants property in Malden bordering on Saugus Branch Creek; that the defendant carried on its business on adjacent property, in the rear of which although not contiguous thereto flowed the creek; that varnolene is an inflammable petroleum product widely used in the arts and industries, having a flashing point of one hundred eight degrees Fahrenheit (flashing point meaning that if “heated to that point it will vaporize and that if there is a spark nearby that has a little fire in it and if there are other conditions that are equal you are apt to have a flame, a fire”); that varnolene was used by the defendant in its business of cleansing garments and household goods; that, although great care was taken to reclaim as much as possible of varnolene for reuse and there was no leak in the pipes, some was spilled in taking clothes from the washer, and prior to the fire quantities of varnolene passed through a drain maintained by the defendant, usually kept plugged, but open about twice a week, to a catch basin in the defendant’s yard and thence from its premises through a pipe leading to the creek several hundred feet east of the street on which the real estate occupied by the plaintiffs was located and in the rear of buildings owned or occupied by the plaintiffs; that this passing of varnolene was in violation of a prohibitory regulation of the department of public safety; that the natural flow of the creek from this drain was westerly by and under said buildings; that about five o’clock in the afternoon of January 5, 1928, when the temperature was below the freezing point of water, this petroleum product became ignited from sparks from a gasoline engine operated about ten feet from the creek by Coleman Bros., Incorporated; that that corporation was building a new channel for the creek, upon land taken by the city of Malden for that purpose, by virtue of a contract with the city of Malden
The verdicts of the jury in favor of the defendant on counts 1 and 2 of the declarations established as a fact that ignition of varnolene in the creek, if and so far as causing damage to property of the plaintiffs, was not due to the negligence of the defendant or to the creation of a nuisance by the defendant. Negligence and nuisance, therefore, are eliminated as a basis of liability. The cases at bar are quite distinguishable from cases like Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, Ogden v. Aspin
The plaintiffs contend that liability of the defendant to them rests or may be found to rest upon the facts that the defendant brought quantities of. varnolene upon its premises and permitted it to escape, that it vaporized and ignited, and that damage by fire to their property ensued as a consequence. They make this contention even though the defendant was not negligent and created no nuisance with respect to the varnolene. The situation, then, is this: The defendant was using a lawful though highly inflammable substance in conducting a lawful business; some of that substance escaped from the premises of the defendant, without negligence and without creating a nuisance, found its way to the surface of the creek, there became ignited by the gasoline engine of Coleman Bros., Incorporated, operated for an independent purpose on land of a third person, fire spread over the surface of the creek and thereby property of the plaintiffs was damaged.
The plaintiffs base their contention on the rule formulated by Blackburn, J., in Fletcher v. Rylands, L. R. 1 Ex. 265, 279, and expressly affirmed in Rylands v. Fletcher, L. R. 3 H. L. 330, 339-340. That rule is that “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” Another more recent
The plaintiffs rightly rest their cases on the ■ rule of Rylands v. Fletcher. This position is necessary because the verdicts on counts 1 and 2 show that the defendant was not negligent and created no nuisance. There are several factors to be observed. The defendant made no use of its land “in an exceptional manner.” It does not appear that its cleansing business was conducted in any “unusual and extraordinary” way. It is a, common and useful business. The use of its property by the defendant was not “unwarrantable and extremely dangerous.” The petroleum product which escaped from the defendant was an article widely used in industry. It was in itself no more dangerous than many other materials in general use in commerce, industry and the home. It was properly employed by the defendant in the conduct of a lawful business. It caused no injury by its mere escape to the surface of the creek. No harm of the nature complained of by the plaintiffs was to be expected from its escape. There is no evidence that under existing conditions any one had reason to apprehend ignition of the varnolene on the surface of the creek at the time and place of the fire. There is no evidence in the record to support a conclusion that the defendant had ground to anticipate that the gasoline engine of Coleman Bros., Incorporated, operated on land Of another at some distance from the creek, would be “skipping” or “backfiring” in circumstances capable of igniting the varnolene in the conditions shown. It is an unusual circumstance that such an element of danger should be present. That which happened was quite outside the common experience of mankind. But for the intervention of the gasoline engine of a stranger on land of another engaged in a public enterprise, the escape of the varnolene would have caused no damage so far as disclosed by the record.
The rule upon which the plaintiffs rely, as already stated,
The cause of injury to the plaintiffs was not the escape of varnolene from the defendant; it was the setting on fire of that substance after its escape, under conditions unlikely to produce ignition, by the intervening act of a third person. That intervening act was not of such a kind that the defendant could have foreseen it. If that act were negligent or malicious, it hardly would be contended that the defendant would be liable. Box v. Jubb, 4 Ex. D. 76. We think that even though that act were innocent, provided it could not reasonably have been anticipated, there is no liability on the part of the defendant in the circumstances here disclosed. See Steam v. Prentice Brothers, Ltd. [1919] 1 K. B. 394.
It is not necessary to consider the scope of the doctrine of absolute liability of the landowner for escape from his premises of anything likely to do mischief when he is free from negligence and has created no nuisance.
In each case the entry may be
Exceptions overruled.