105 S.E. 425 | N.C. | 1920
The negligence complained of was: First, that the defendant had kept on its premises a large and unlawful quantity of gasoline, and stored the same in an unlawful manner, contrary to the ordinance of the city of Greensboro; second, that it kept no watchman upon its premises; third, that it violated section 412 of the ordinances of Greensboro; fourth, that it permitted gasoline in large quantities to flow freely upon the streets and sidewalks of the city of Greensboro, where it could be easily, and was, ignited. That as a result of such negligence, inflammable vapors exploded at about 7 o'clock a.m. on 3 May, 1919, and that such explosion was so great as to wreck and ruin the plaintiff's dwelling, and many others. *548
Some of the material parts of the evidence in this case, upon which the verdict of the jury is based, are as follows:
1. Over 30,000 gallons of gasoline were stored on defendant's premises inside the corporate limits of the city of Greensboro, in a populous community.
2. A warehouse used to fill metal drums of 50 or 60 gallon capacity with gasoline.
3. Red coloring matter kept in warehouse or basement.
4. A large stream of red-colored gasoline flowing from such basement into Lithia Street.
5. Trains passing within 30 feet of warehouse, and over gasoline.
6. Gasoline fumes will explode from flame or sparks.
7. Explosion in warehouse — flame at same time in warehouse and street, where gasoline was seen.
8. Two metal drums used for gasoline were found in the ruins — head blown out of one of them.
9. No watchman was kept on defendant's premises.
10. Violation of city ordinance of Greensboro, in storing and keeping gasoline — conveyed into house by pressure, etc.
11. Gasoline at ordinary temperature gives off an inflammable and explosive vapor, and it occurred in this instance, causing the explosion.
The case was tried and submitted to the jury upon the theory of negligence, and the burden of proving actionable negligence was put upon the plaintiff. It developed on the trial that the defendant established, operated, and maintained upon its premises certain unlawful structures, wherein gasoline and kerosene in large quantities were stored, and was liable to the plaintiff for the injury resulting therefrom. On 3 May, 1919, the defendant's plant was located inside the corporate limits of the city of Greensboro, at the intersection of Lee and Lithia streets. It was bounded on the south by Lee Street, on the west by Lithia Street, and on the north by the double tracks and sidetracks of the North Carolina and Southern Railroads, and on the east by dwellings, built on comparatively small lots, the plaintiff's lot being the next lot east of the defendant's premises and fifty (50) feet from the east line thereof. The plant was located in a populous section of the city and about two hundred (200) feet from the State Normal and Industrial College, a large educational institution inhabited by many people. Lithia Street slopes to the north and passes under the tracks of the above named railroads, it being the main line of the Southern Railroad, and a large number of trains pass and repass the defendant's premises each day.
The defendant used its premises as a storage plant for gasoline and other products, which it sold at wholesale. It had thereon a warehouse, *549 under which there was a large basement, pumphouse, shed, and three large tanks, a vertical tank with a capacity of 60,000 gallons used for the purpose of storing gasoline, and two horizontal tanks, each with a capacity of 15,000 gallons, one of which was used for the storage of gasoline, and the other for kerosene. The warehouse was on the northwest corner of the lot, and its north platform was even with the railroad siding. This warehouse was used for the storage of barreled goods and metal drums were filled in the warehouse for shipment, the metal drums holding from 50 to 60 gallons of gasoline. The two horizontal tanks were just south of the warehouse and were elevated some four or five feet above the ground. The vertical tank was east of the warehouse and stood some distance above the ground. The gasoline was conveyed to a vent in the warehouse from the storage tanks above mentioned by pipe-lines, and was forced into the warehouse by pressure. Gasoline could also be taken from the horizontal tanks by truck, there being a vent in the front of such horizontal tanks. There was a drain from the basement of the warehouse that emptied on Lithia Street at a point about 15 feet from the railroad embankment.
At the time above mentioned, there was an explosion in the warehouse of the defendant company. The plaintiff was standing in his kitchen at the time, and on looking around saw the main storage-house explode and burst into flames. He saw pieces of scantling and paper roofing falling in every direction. Some of the weatherboarding of the warehouse fell in his garden, pieces of it being ten and twelve feet long. The explosion wrecked the plaintiff's dwelling by shattering the window glasses, knocking the plastering from the walls and twisting and bending the timbers of his house as described in the record. He also observed that there were flames on Lithia Street in the gutter, or side ditch, and by the curbstone. After the fire was over, he saw two metal drums in the ruins of the same kind as those in which they kept gasoline. These were in the cellar to what had been the warehouse. One drum had the head blown out. On the same day, after the fire had subsided, he saw the defendant fill one of its truck-cars with gasoline. The truck-car held about one hundred (100) gallons of gasoline, and was filled from one of the horizontal tanks. There were about 30,000 to 40,000 gallons of gasoline in the vertical tank. Just prior to the explosion six witnesses saw a large quantity of gasoline flowing from a little drain pipe leading from the north west corner of the defendant's warehouse, at a point about ten or fifteen feet from the railroad embankment. This stream of gasoline was 24 to 30 inches wide in some places, and averaged a width of 12 inches and a depth of one inch. It had run down in the gutter on Lithia Street, a distance of about 75 or 80 feet, and was breaking its way along. It had a red color. After the fire was over, Mr. Scott, the *550 deputy insurance commissioner, found a quantity of red coloring matter in the basement of the warehouse.
Gasoline at ordinary temperature gives off inflammable vapors, which contain carbon and hydrogen, and when they combine with oxygen it explodes, if it comes in contact with fire. Gasoline could become ignited. It could ignite before it reached a certain state. It could be done by a spontaneous combustion, but that is rare. Usually it has to be ignited by flame or spark of some kind. (By reference to the record in the Fox case, it will be seen that the Winston train was passing the defendant's premises just as the explosion occurred. The engine had passed, and the window-panes were broken in some of the cars. Gasoline will give off inflammable vapors, even when the temperature is below zero, according to the testimony of W. M. Allen, State Oil Chemist.
The jury, upon the evidence and under the charge of the court, returned a verdict for the plaintiff, and assessed his damages at eight hundred dollars.
Judgment upon the verdict, and defendant appealed.
after stating the case: This is one of several cases of the same kind, and was tried under the guidance of the able and learned judge who presided, upon the theory of negligence and the breach of the ordinance of Greensboro requiring that such a business as that of the defendant must be conducted under a license, which may be issued when the applicant for it has submitted to the proper city authorities its plans and specifications, and they have been approved by the board. No such thing was done by the defendant before it started in business, nor has it since been done, so far as appears in the case. The police regulations as to the erection and use of buildings and other structures for the purpose of carrying on the business of selling and distributing kerosene, gasoline, and other petroleum products is well within the governmental powers ordinarily possessed by cities and towns, as we have very recently decided. GulfRefining Co. v. McKernan,
To the same effect is 2 Labatt Master and Servant, 2177. He says: "By many courts it is held that a violation of such statute constitutes negligence per se." After stating the other theories, he adds: "That *553
the former of these theories is the correct one can scarcely be doubted. A doctrine, the essential effects of which is that the quality of an act which the Legislature has prescribed or forbidden, becomes an open question, upon which juries are entitled to express an opinion, would seem to be highly anomalous. The command or prohibition of a permanent body, which represents an entire community, ought, in any reasonable view, to be regarded as a final judgment upon the subject-matter, which renders it both unnecessary and improper that this question should be submitted to a jury." The latest expression of judicial thought in England corresponds with the authorities cited. In Groves v. Winborne, 2 L. R., 1898, Q. B. Div., 402,Rigby, L. J., at p. 412, says: "When an absolute duty is imposed upon a person by statute, it is not necessary, in order to make him liable for breach of that duty, to show negligence. Whether there be negligence or not, he is responsible quacunque via data for the nonperformance of the duty," if it causes damage. In New York the Court held, in the Marino case,
In some cases the courts have found circumstances which were considered such as to make the storage of gas or oil a nuisance. Thus, it was held inO'Hare v. Nelson,
We may well conclude this opinion by referring to a case which seems to resemble this one more closely than any other, the only difference being that the case at bar contains much stronger evidence to establish a nuisance than in the cited case. It is there said: "We may grant that the storage of gasoline on premises adjacent to, or adjoining, the premises of another is not a private nuisance per se. It might, however, become such, considering the locality, the quantity, and the surrounding circumstances, and would not necessarily depend upon the degree of care used in its storage. Heeg v. Licht, supra; 29 Cyc., 1177. We may also concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks, as testified to by defendant's experts. Considering, however, the dangerous character of the substance, and its power as an explosive, of which, in this age of its wonderful development as a power to propel automobiles, traction engines, and airships, we can well take judicial notice, and also considering human fallibility, that accidents in the operation of the most perfect mechanism will occur, and all that it needs to change what is, when properly protected, a harmless agency, to a most dangerous explosive, is a careless person — can it be said that to have 20,000 gallons of such an agency stored within but a few feet of one's dwelling-house is not sufficient to be an unreasonable interference with the comfortable enjoyment of that home? This is a purely residence district of the city, and was such before the defendant began operating its dry-cleaning business, and it must be apparent to any fair-minded person that the location of these tanks in immediate proximity to complainant Whittemore's house would necessarily damage his property." Whittemore v. Baxter L. Co., 148 N.W. (Mich.), 437. *559
We need not discuss the maxim res ipsa loquitur any further than we already have, for it is not necessary to do so.
As to the probability of the fire reaching the liquid fluid from defendant's premises, and touching off the volatile gas produced by its contact with the air, from which it received the oxygen, there can be no dispute that the evidence permitted the inference by the jury that a spark from an engine of the railroad company caused the explosion, or live ashes dropped from the cigarette or cigar of a passerby. It would not have exploded but from some such or similar cause. That it was a permissible inference is fully decided in the cases, as to sparks falling from railroad engines and igniting the combustible material on the right of way or contiguous lands, and thereby destroying timber and other property, such asSimmons v. Lumber Co.,
The nonsuit was properly refused by the presiding judge. The evidence was ample for the consideration of the jury, and we may add, was almost as strong as it could possibly be. The defendant must have *560
had full knowledge of the facts, or, at least, should have had it, and nevertheless it introduced no testimony, and left the jury at liberty to infer that it either had no explanation or excuse to offer, or that the explosion could have been prevented by the exercise of ordinary care, and there was no alternative but to return a verdict against it. They were left to consider its silence as a damaging circumstance against it, for the facts in evidence required some sort of explanation from it, and it was not forthcoming. Its refusal to explain was a relevant and competent circumstance against it. Goodman v. Sapp,
Here was a large plant, intended to supply the inhabitants of a flourishing city with these widely used products of petroleum, which were of a highly explosive character, when allowed to escape from their containers and become exposed to another chemical element, the oxygen of the air. That the gasoline did thus escape is beyond dispute, and yet by the exercise of the slightest care on the part of this apparently affluent company, it could have been prevented. Defendant, though, seemed to be more intent upon profits than upon safety, or upon making a small expenditure for a watchman, than upon safeguarding the people of a large city against a terrible catastrophe, involving immense loss of life and property; hence the fatality in this case, which could easily have been avoided by proper care.
Defendant was just as culpable as the gas company which permitted a live wire to dangle from one of its poles, as in Haynes v. Gas Co.,
The charge of Judge McElroy was fair, and plainly so to the defendant, and devoid of any error; it was also exceptionally lucid and strong in its statement of the law applicable to the case. *561
The exceptions of the defendant are found to be without any real merit, and we therefore affirm the judgment.
No error.