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Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
EMMET FIELD, Judge.
From the judgment plaintiff appeals. — Reversed as to one defendant and affirmed as to the others.
BRADFORD WEBSTER, ARTHUR C. POPHAM, CHATTERSON & BLITZ, O'NEAL & O'NEAL, B. H. YOUNG, C. W. HUGGINS and J. MORGAN CHINN for appellant.
DAVID W. BAIRD, E. P. HUMPHREY, HUMPHREY, DAVIS & HUMPHREY and KOHN, BAIRD, SLOSS & KOHN for appellees.
OPINION OF THE COURT BY JUDGE SETTLE — Affirming.
This action was instituted by the appellant, John Watson, in the court below, against the appellees, Kentucky & Indiana Bridge & Railroad Company, hereinafter called the Bridge & Railroad Company, the Southern Railway Company, the Southern Railway Company in Kentucky, and the Union Tank Line Company, to recover $20,000 damages for injuries sustained to his person on the night of June 14, 1907, from an explosion of gas caused, as alleged, by the negligence of the appellees. It was, in substance, alleged in the petition as amended that while a tank car, owned by the appellee Union Tank Line Company, and filled with a highly explosive substance, known as gasoline, was being transported through a populous section of the city of Louisville over the roadbed of the appellee Bridge & Railroad Company, it was derailed and its valve broken, thereby causing all the gasoline to escape and flow in large quantities on the street and into the gutters; that from the gasoline thus flowing and standing in pools upon the street and gutters there arose and spread over the neighborhood of the place of derailment and into the houses of the residents thereof, great quantities of highly explosive and combustible gas which, three hours after the derailment of the tank car, exploded with force from contact with a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in igniting a cigar; that the explosion threw appellant from his bed and almost demolished
his house, from the ruins of which he was taken unconscious and bleeding with a fractured jaw and one cheek nearly torn from his face. It was further charged in the petition that the explosion and appellant's consequent injuries resulted from the negligence of all the appellees; the negligence of the Union Tank Line Company lying, as alleged, in its failure to provide a tank car with proper trucks and main valve; that of the Bridge & Railroad Company in failing to maintain in a safe condition the roadbed and track at the point of derailment; in permitting the tank car to remain at the place of derailment in its wrecked condition an unreasonable time, and in allowing ignorant and careless meddling on the part of their servants with the main valve of the tank after it was broken, whereby the flow of the gasoline from the tank was increased instead of diminished. All the material averments of the petition were specifically denied by the answer of the appellees. As on the trial the proof failed to show that either the Southern Railway Company, or the Southern Railway Company in Kentucky, was charged with the duty of maintaining the roadbed or tracks at the place of derailment or that they had handled or had anything to do with the tank car in question, appellant, at the conclusion of all the evidence, dismissed the action without prejudice as to those two appellees. At the conclusion of appellant's evidence, the appellees Bridge & Railroad Company and Union Tank Line Company moved the court peremptorily to instruct the jury to find for them. The motion was overruled, but being renewed by appellees after the introduction of all the evidence, it was sustained, and the jury, in obedience to the peremptory instruction then given by the court, returned a verdict in behalf
of appellees, upon which judgment was entered in their favor for costs. Appellant being dissatisfied with that judgment and the refusal of the circuit court to grant him a new trial, has appealed.
The main question involved in this appeal is, whether or not the trial court erred in giving the peremptory instruction. Its decision will require consideration of the evidence. It is conceded that the tank car belonged to appellee Union Tank Line Company, and the evidence conclusively shows that it was loaded at Franklin, Pa., with gasoline. In reaching the consignee at Louisville, it passed over several lines of railroad, but was delivered by the Baltimore Ohio & Southwestern Railroad to the appellee Bridge & Railroad Company, in the city of Louisville, at what is known as the Youngtown yards. The latter company was at the time of the accident hauling the tank car, attached to one of its trains, from its railroad yards near the Ohio river to the place of business of the consignee in the southern part of the city. The derailment of the car occurred about 7:30 o'clock in the evening between Walnut and Madison streets. The gasoline began at once to escape from the tank and continued to do so for several hours until the tank was emptied. By the derailing of the car the discharge pipe beneath the tank provided for emptying it of its contents, was broken, as were the appliances for opening and closing the valves by which the contents were allowed to leave, or prevented from leaving the tank. The gasoline in escaping from the tank ran down a gutter or drain in the street and along appellee Bridge & Railroad Company's right of way, several hundred feet to a sewer, into which it flowed. The employes of appellee Bridge & Railroad Company connected with the train in question, and
later the wrecking crew called to their assistance, seemed to be unable to stop the escape of gasoline from the tank, or at any rate did not do so. From the gasoline, vapor or gas of a highly combustible character arose and permeated the atmosphere a distance of 500 or 600 feet from the place of derailment. About 11:30 o'clock, Charles Duerr, who with Charles Miller and two young women, designated in the record as the Warner girls, was standing in front of the Warner residence on Madison street, a square west of the place of the accident, struck a match which he threw to the ground, and this match in its descent came in contact with the gas generated by the flowing gasoline, thereby causing the explosion by which appellant was injured.
There is no disagreement between the parties as to the facts thus far stated, but there are several issues of fact yet to be considered with respect to which there is sharp controversy. One of the points of difference is as to the condition of the railroad track where the tank car was derailed. The evidence of appellant conduced to prove that it was defective and unsafe. Indeed, several witnesses introduced by him testified that the derailment of the car was caused by a low or loose joint in the rails which sank under the wheels of the car to such an extent as to throw it from the track, in leaving which it broke one of the rails; that the low joint was produced by the rottenness of the ties supporting it, want of ballast between the ties, and the flat or swampy condition of the roadbed at the place of derailment. According to the further statements of the witnesses in question the bad condition of the roadbed and track, as described, had continued a long time, and must have been known to those charged with the duty of keeping it
in repair. On the other hand, a number of witnesses introduced by appellees were of opinion that the roadbed and track were in a reasonably safe condition and the testimony of some of them conduced to prove that there was no low joint in the rail and that the car left the track 26 feet before reaching what appellant's witnesses called the low joint, and that the derailment of the car was an unavoidable casualty or accident which could not, by the exercise of ordinary care, have been prevented. But considering the evidence as a whole, it cannot be denied that much of it was to the effect that the derailment was caused by the negligence of the appellee Bridge & Railroad Company in failing to keep its roadbed and track in repair. We find a much greater contrariety of evidence as to appellant's contention that the employes of the appellee Bridge & Railroad Company were negligent in handling the tank car after the derailment. It is apparent from the testimony of all the witnesses that the discharge pipe under the tank and the appliances for operating the tank valve were broken by the derailment of the car, and that the gasoline immediately began to escape. It was, however, stated by appellant's witnesses that the escaping gasoline was at first but a small stream, but that appellee Bridge & Railroad Company's servants in charge of the derailed car by their negligence in handling it, increased the flow of gasoline therefrom. This they stated was done by their opening a manhole on the top of the tank, and also by completely opening the valve at the bottom thereof in the effort to close it; that by thus opening the valve below and thereby removing the partial obstruction to the escape of the gasoline, the pressure of the air coming through the manhole above facilitated
its flow, and such increase of the flow created the greater quantity of gas in the surrounding atmosphere, which, in turn, increased the probability of an explosion, and added to the danger of all persons within the radius of its influence.
As already intimated, the testimony of appellee's witnesses radically differed from that of appellant's as to what was done to stop the escape of the gasoline after the derailment of the car. They all denied that they caused, or that there was, any increase in the flow of gasoline from the tank, and claimed that they did everything in their power to stop the leak; using for that purpose waste, mud, and other appliances after they discovered that the discharge pipe was broken, the valves open, and that the appliances for closing the valve would not perform their work. They further testified that their attempts to stop the leak were attended by great risk and danger to their lives; that the bad odor of the gasoline was nauseating, the darkness interfered with their vision and movements, and the use of lanterns or torches near enough to the car to obtain a good view of the situation, would inevitably have resulted in an explosion of the gas escaping in great volume from the flowing gasoline. Whether the jury, if the case had been submitted to them, would have decided this issue of fact in accordance with the testimony of appellant's witnesses cannot be known, but it is manifest that the issue was one to be determined by the jury if the case should have gone to them at all. Another issue of fact was as to whether the servants of appellee Bridge & Railroad Company gave residents near the place of the accident and persons traveling Madison street at that point warning against the dangers from the gas.
Appellant, and at least five other witnesses introduced in his behalf, testified that they lived, or happened to be near the place of the accident and saw or felt the force of the explosion, but that they received neither notice nor warning of the presence of gas or that there was danger of an explosion. Mrs. Kern, one of the witnesses, testified that she had lights in her house down to the time of the explosion, but that she was not warned to put them out. Appellees' testimony tended to show that the railroad employes in charge of the wrecked car sent word to the train despatcher to keep trains away from the place of the accident: that they stationed guards around the place to keep spectators at a safe distance and to prevent lights from being brought into the gaseous atmosphere, and that the many people who went to the place of the accident were warned generally of the danger to be apprehended from the presence of the gas. It will readily be seen that the testimony upon this issue was also conflicting.
There is no contrariety of proof as to the fact that Charles Duerr lighted the match that caused the explosion. Indeed, the act was admitted by him, but he testified that when it was done he and Miller, a companion, were standing on Madison street in front of the Warner residence a square from the derailed car, talking with the two Warner girls, the four having just returned from Shawnee Park; that he took a cigar and match from his pockets, struck a light from the match, and ignited the cigar; that the explosion followed before the match reached the ground and that he was knocked down by the explosion. He further testified that at the time of lighting the match he had just returned from Shawnee Park and knew nothing of the derailment of the tank car, or
of the existence of the gas arising from the escaping gasoline, and that he did not intend to cause the explosion, nor did he know that the lighting of the match would cause it. Duerr was corroborated by Miller and one of the Warner girls, and Mrs. Kern testified that she saw the two young men standing on Madison street and talking with the Warner girls, she being at her gate near them; that although she saw Duerr when he struck the match, she did not see him drop it, but saw that the explosion immediately followed the lighting of the match. W. G. Schnepp, who was near Duerr and his companions, said he did not see the match thrown, but heard a woman call out at that time for everybody to run, as some one had thrown a match. R. W. Polly, a witness for appellees, testified that he was across the street and within 60 feet of Duerr, Miller, and the Warner girls at the time of the explosion; that there was an electric light burning just above where they were standing and he could see them plainly; that neither of the young men had a cigar or pipe; that he saw Duerr strike a match against the fence and throw it into the plainly visible vapor arising from the gasoline and that the explosion immediately followed.
Appellees were permitted to prove that Duerr, who had been a telegraph operator in the employ of the appellee Bridge & Railroad Company, was on the morning of the day of the explosion discharged from its service, and that 20 minutes before the explosion Duerr remarked to his companion, in the hearing of Giacometti and Darnall, "Let us go and set the damn thing on fire." The foundation for the introduction of the testimony of Giacometti and Darnall was laid by first obtaining from Duerr a denial that he had
made the statement. Appellees introduced and had read to the jury, an indictment against Duerr for feloniously burning a stable, and also a judgment showing that he was allowed, after waiving a trial by jury, to plead guilty to a misdemeanor, viz., the offense of unlawfully destroying the property of another, for which he was fined by the court $350. The peremptory instruction was granted by the trial court upon the theory that though the Bridge & Railroad Company may have been guilty of negligence in permitting the tank car to be derailed, such negligence was not the proximate cause of the appellant's injuries, but that the act of Duerr in lighting and throwing the match, which the court declared was done purposely and in a spirit of wantonness, malice, or mischief, was the proximate cause thereof. We are clearly of opinion that the peremptory instruction, in so far as it required the jury to find for the appelllee Bridge & Railroad Company was unauthorized.
There was, as previously indicated, evidence from which the jury might have found the appellee Bridge & Railroad Company guilty of negligence in failing to keep in proper repair and condition its roadbed and track at the place where the tank car was derailed, and that such failure caused the derailment resulting in the escape from the tank of the gasoline, contact of the gas from which with the match lighted by Duerr caused the explosion. There was also some evidence, very slight, it is true, tending to support appellant's contentions that the employes of the appellee Bridge & Railroad Company were negligent in handling the car after its derailment, and in failing to sufficiently warn residents and others near the place of the accident against the dangers to be apprehended
from the presence of the gas produced by the escaping gasoline.
The lighting of the match by Duerr having resulted in the explosion, the question is, was that act merely a contributing cause, or the efficient and, therefore, proximate cause of appellant's injuries? The question of proximate cause is a question for the jury. In holding that Duerr in lighting or throwing the match acted maliciously or with intent to cause the explosion, the trial court invaded the province of the jury. There was, it is true, evidence tending to prove that the act was wanton or malicious, but also evidence conducing to prove that it was inadvertently or negligently done by Duerr. It was therefore for the jury and not the court to determine from all the evidence whether the lighting of the match was done by Duerr inadvertently or negligently, or whether it was a wanton and malicious act. As said in Milwaukee Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. 256: "The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it." Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252. In Thompson on Negligence, section 161, it is said: "On principle, the rule must be here, as in other cases, that, before the judge can take the question away from the jury and determine it himself, the facts must not only be undisputed, but the inference to be drawn from those facts must be such that fair-minded men ought not to differ about them. It must be concluded that this is so, when it is considered that proximate cause is a cause which would probably, according to the experience of mankind, lead to the
event which happened, and that remote cause is a cause which would not, according to such experience, lead to such an event. Now, whether a given cause will probably lead to a given result is plainly to be determined by the average experience of mankind; that is, by a jury rather than by a legal scholar on the bench." No better statement of the law of proximate cause can be given than is found in 21 Am. & Eng. Ency. of Law (2d Ed.) 490, quoted with approval in Louisville Home Telephone Company v. Gasper, 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548: "It is well settled that the mere fact that there have been intervening causes between the defendant's negligence and the plaintiff's injuries is not sufficient in law to relieve the former from liability; that is to say, the plaintiff's injuries may yet be natural and proximate in law, although between the defendant's negligence and the injuries other causes or conditions, or agencies, may have operated, and, when this is the case, the defendant is liable. So the defendant is clearly responsible where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act or omission, or even, it is generally held, if the intervening acts or conditions were of a nature the happening of which was reasonably to have been anticipated, though they may have been acts of the plaintiff himself. An act or omission may yet be negligent and of a nature to charge a defendant with liability, although no injuries would have been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated. * * * A proximate cause is that cause which naturally led to and which might have been expected to produce
the result. * * * The connection of cause and effect must be established. It is also a principle well established that when an injury is caused by two causes concurring to produce the result, for one of which the defendant is responsible, and not for the other, the defendant cannot escape the responsibility. One is liable for an injury caused by the concurring negligence of himself and another to the same extent as for one caused entirely by his own negligence." Black's Law and Practice, section 21; Thompson on Negligence, sections 47-52; Whitaker's Smith on Negligence, 27-; 29 Cyc. 488-502.
If the presence on Madison street in the city of Louisville of the great volume of loose gas that arose from the escaping gasoline was caused by the negligence of the appellee Bridge & Railroad Company, it seems to us that the probable consequences of its coming in contact with fire and causing an explosion was too plain a proposition to admit of doubt. Indeed, it was most probable that some one would strike a match to light a cigar or for other purposes in the midst of the gas. In our opinion, therefore, the act of one lighting and throwing a match under such circumstances cannot be said to be the efficient cause of the explosion. It did not of itself produce the explosion, nor could it have done so without the assistance and contribution resulting from the primary negligence, if there was such negligence, on the part of the appellee Bridge & Railroad Company in furnishing the presence of the gas in the street. This conclusion, however, rests upon the theory that Duerr inadvertently or negligently lighted and threw the match in the gas. This view of the case is sustained by the following leading cases, all decided by this court: Snydor v. Arnold, 122 Ky. 557, 92 S. W. 289,
28 Ky. Law Rep. 1252; Louisville Gas Co. v. Gutenkunt, 82 Ky. 432; Whitman-McNamara Tobacco Co. v. Warren, 66 S. W. 609, 23 Ky. Law Rep. 2120; Louisville Home Telephone Co. v. Gasper. 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578. 9 L. R. A. (N. S.) 548. The cases supra are, indeed, in point of fact and principle so analogous to the case under consideration as to completely control its determination, and to render further discussion of it unnecessary.
If, however, the act of Duerr in lighting the match and throwing it into the vapor or gas arising from the gasoline was malicious, and done for the purpose of causing the explosion, we do not think appellees would be responsible, for while the appellee Bridge & Railroad Company's negligence may have been the efficient cause of the presence of the gas in the street, and it should have understood enough of the consequences thereof to have foreseen that an explosion was likely to result from the inadvertent or negligent lighting of a match by some person who was ignorant of the presence of the gas or of the effect of lighting or throwing a match in it, it could not have foreseen or deemed it probable that one would maliciously or wantonly do such an act for the evil purpose of producing the explosion. Therefore, if the act of Duerr was malicious, we quite agree with the trial court that it was one which the appellees could not reasonably have anticipated or guarded against, and in such case the act of Duerr, and not the primary negligence of the appellee Bridge & Railroad Company, in any of the particulars charged, was the efficient or proximate cause of appellant's injuries. The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty
of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted, and hence is not liable therefor. 29 Cyc. 501-512; Sofield v. Sommers, 9 Ben. 526, 22 Fed. Cas. 769, Cas. No. 13,157; Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300, 88 An. St. Rep. 25.
The record shows no cause of action whatever against the Union Tank Line Company. The only complaint against it is that the tank car was defective. The testimony conclusively shows that the car was inspected at Franklin, Pa., before its delivery to the railroad company there for transportation to Louisville, and was found to be in good condition; that it remained in such condition on the way to Louisville and such was its condition when delivered to appellee Bridge and Railroad Company, at Louisville. On the other hand, the appellant introduced no evidence to show that the car was not properly constructed, that any of its appliances were defective, or that it was leaking prior to the time of the accident. This being true, it is patent that the derailment of the car broke or injured it to such an extent as to cause the escape of the oil, and with that accident the appellee, Union Tank Line Company, had nothing to do and was in no sense responsible therefor. The peremptory instruction, therefore, so far as the appellee, Union Tank Line Company, was concerned, was proper.
We do not think the court erred in allowing the indictment against Duerr for burning the stable, or the judgment showing what disposition was made of the case, to be read to the jury. The stable was destroyed
by the gas explosion. The plea of Duerr to the indictment was a confession that he unlawfully caused it to be burned, although its destruction resulted from his lighting of the match. The record, therefore, tended to contradict his testimony in this case that his act in producing the explosion was not malicious. We are of opinion, however, that the trial court erred in refusing to permit Duerr to testify as to the circumstances under which the plea was made and the trial had, and that in entering the plea of guilty as indicated, and submitting to the imposition of the fine, he acted upon the advice of his counsel.
We also think that the testimony of Giacometti and Darnall showing the threat of Duerr to cause the explosion was properly admitted for the purpose of contradicting Duerr, who had previously denied making the threat. But the testimony, as well as that furnished by the indictment and judgment, should have been considered by the jury, only for the purpose of affecting Duerr's credibility as a witness, and the court should have so told the jury.
For the reasons indicated, the judgment is affirmed as to the Union Tank Line Company, but reversed as to the Bridge & Railroad Company, and cause remanded for a new trial consistent with the opinion.
On petition for rehearing, June 17, 1910.
The petition for appellees asks a withdrawal of so much of the opinion as declares the statements of Duerr, made in the hearing of Giacometti and Darnell just before the explosion, and the evidence furnished by the indictment against him and judgment thereon, were competent only for the purpose of affecting his credibility as a witness, and
that the court hold it competent as substantive evidence.
Upon reconsideration of the matter, we have reached the conclusion that the testimony of Giacometti and Darnell as to the declarations or threats made by Duerr immediately before the explosion should be admitted as substantive evidence conducing to prove what his motive was in lighting and throwing the match into the gas. But as the indictment against him was returned, and his conviction thereunder occurred, after the explosion, we adhere to the conclusion expressed in the opinion that the evidence furnished by them is competent only for the purpose of affecting Duerr's credibility as a witness, as explained in the opinion.
The opinion is modified to the extent indicated, but the petition in other respects is overruled.
June 25, 2013
137 Ky 619, 126 SW 146
Court of Appeals of Kentucky
H2O Case Admin.
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