Texas Gulf Sulphur Co. v. Portland Gas Light Co.

57 F.2d 801, 1932 U.S. App. LEXIS 4068, 1933 A.M.C. 908

• Court: Court of Appeals for the First Circuit
• Decided: April 7, 1932
• Docket: No. 2640
• Status: Published

Opinions

HALE, District Judge.

These cases, consolidated for appeal, come before this court on exception by the plaintiffs to the granting of a nonsuit by the United States District Court for the District of Maine. Each plaintiff, by its declaration, alleges that the defendant corporation, in the process of manufacturing, selling, and distributing illuminating gas at its plant on West Commercial street, Portland, Me., had large quantities of oils, gas waste, sludge, and other materials, liquids, and substances of a highly dangerous and inflammable nature. That on the sixteenth day of September, 1929, the plaintiffs were the owners of certain quantities of sulphur stored upon the Portland Terminal Company wharf No. 1, at Portland, near by the premises of the defendant, and that the sulphur was of great value; that on the sixteenth day of September, 1929, the defendant negligently and carelessly and in violation of a certain municipal ordinance of Portland,- passed on April 22, 1922, forbidding the deposit of oils, waste, or other inflammable and dangerous substances in the waters of Portland harbor, caused or permitted large quantities of oil, waste, gas, sludge, coal tar, and other materials, liquids, and substances of a highly inflammable and dangerous nature to float from the surface of its premises on West Commercial street, Portland, or through certain channels, drains, or sewers on its premises, upon and into the waters of Portland harbor, from whence it floated over and upon the surface of the waters of the harbor, and under the wharf No. 1 of the Portland Terminal Company upon which the plaintiffs’ sulphur was stored; and also around the pilings supporting .the wharf, and to accumulate under the wharf. That those oils, gas waste, sludge, coal tar, and other materials so discharged from the defendant’s plant and so accumulated under the Portland Torminal Company’s wharf No-. 1 became ignited on September 16, 1929, and a serious fire -arose therefrom, and that the plaintiffs’ sulphur, so stored on the Portland Terminal Company wharf No. 1, was burned and was then and there totally destroyed; and that the fire and the destruction of the sulphur by the fire was not caused by the negligence or fault of the plaintiffs, but was wholly due to the negligence, carelessness, and unlawful conduct of the defendant, its agents, and servants,'in causing or permitting its oils, gas waste, sludge, and other materials of a dangerous and inflammable character to be discharged from its premises into Portland harbor.

In the second count the plaintiffs allege that the allowing of the oil, sludge, and so forth to discharge and float into and upon the harbor constituted a public and private nuisance, Each plaintiff, then, bases its case upon the negligence, carelessness, and unlawful conduct of the defendant. .

The testimony and photographs before the court show the location of the wharves. Each plaintiff is lessee of the Portland Terminal Company wharf No. 1, and its sulphur sheds are located on it. In the leases from the Portland Terminal Company to the plaintiffs, the lessee “covenants and agrees to take upon itself all risk of loss by Are to the contents of said building and neither it nor any person claiming under it shall have or make any claim upon the lessor for any damage to said contents from Are caused by sparks or coals from any locomotives or otherwise.”

This wharf is located on the harbor side of the Portland bridge. To the west of it and above the bridge, towards Eore river, is the wharf No. 2, and to the west of that is the defendant’s property. Wharf No. 1, namely the Portland Terminal Company wharf, is about 1,100 feet long; the fire started very near the middle of this wharf. From the westerly comer of wharf No. 1 to the first sewer coming out of the defendant’s property is 680 feet; this makes the sewer approximately 1,200 feet from the midale of the wharf. There are three city sewers, one coming out under wharf No. 2, and one under wharf No. 1, and one coming out on the railroad property on the wharf adjoining to the east. These city sewers are the outlet for sewers covering a large area, covering surface grades, garages, jnd places where oil is used for heating, both domestic and commercial. To' the west of the defendant’s property, towards Fore river, are large storage tanks of petroleum products, belonging to the Standard Oil, Shell, Cities Service, Gulf, Mexican Petroleum, Rolling Mills, Ricker’s, International Paper Company, Texas Company, and part way across the harbor, almost opposite wharf No. 1, the storage tanks of the Cumberland County Power & Light Company, are situated. The testimony shows that gasoline and oils are unloaded from steamers into' these tanks. Deake’s wharf adjoins wharf No. 1 on the east; on this wharf is the Brawn sardine fa<i-tory. The Brawns, at this factory, use cottonseed oil and burn a crude oil for fuel; they have a crude oil and a gasoline boat. Crude oil is thick and black. There are many filling stations, garages and machine shops on the waterfront. There is testimony that some kind of oil is seen on the harbor “practically every day of the year.” The fire occurred, between five and half-past five in the afternoon (daylight saving time). Witnesses saw ashes containing live coals or hot burning clinkers coming down the chutes of the Portland Terminal Company wharf. A witness was called who saw coal burning right under where the coals are dumped. One witness says: “I should-judge it was under the chute where they had been dumping the ashes.” “There was a tower right over the fire when it first started.” A witness saw a gush of flames coming from underneath the wharf that went up and struck the side of the steamer Plymouth. A witness testified that he could see nothing underneath the wharf where the fire started but coal and ashes. On the day of the fire oil was seen upon the harbor, and it was in testimony that this oil flowed with the tide down the .river, under the Portland Terminal Company’s wharf and around the wharf supports. It was seen clinging from the Portland Terminal Company’s wharf and about the piles of the wharf. It was inflammable, and when touched by a live ember burst into flames. The steamer Bandi at Deake’s wharf caught fire during the progress of the fire. Holland, the steward of the steamer Plymouth, testified that at the time of the fire he was standing amidships on the steamer; that he went down to the lower deck and looked out and could see under the whaxf, and that he saw an oil residuum under the wharf. He said he had seen a heavy oil substance more or less all the afternoon, and the only place he saw it on the water was on the starboard side of the Plymouth, the side farthest from the wharf; that he got no odor. ‘He saw oil ‘on the spiles.

Boyce, chairman of the house committee of the yacht club, testified that he was called by the steward of the club between eight and nine o’clock in the morning to look at the conditions of oil about the wharf of the elub, the club being about one-tenth of a mile east of the wharf No. 1. He found a heavy film of oil on the water, quite thick, of a light color, like amber, floating over the dock. It was sticky, lika ail oil. Boyce had a machine shop on Central Wharf for seven years, and has seen oil of some kind on the water of tho harbor nearly every day, though differing in appearance and thickness from that seen around the No. 1 wharf of the Portland Terminal Company on September 16, 3929. At the outburst of the fire he was on Ms way to the yacht club in his automobile and, on reaching the scene of the fire, saw the burning embers fall in front of the Bandi; there Was an immediate flash and a flame that shot up to tho bowsprit of the boat. It smelled like lubricating oil or gasoline. ITe testified that the oil he saw on the morning of the fire, at thd yacht club, smelled more like fuel oil.

The plaintiffs place great stress upon the testimony of Thorndike, a collector of waste from sardine factories. He testified that he ran his boat up just above the bridge and looked up towards the defendant company’s wharf; that at Deake’s wharf and around the Plymouth, under the Portland Pier opposite the Portland Terminal Company wharf No. 2 and opposite the gas works, and as far as the dolphins, he saw something that had the appearance, smell, and color of gas waste; that he saw a tarry substance coming down between the bow of the Plymouth and wharf; that he noticed that the tarry substance was along tho docks and at the stern of tho Plymouth, and he followed that along up as far as No. 2 to' the dolphins off the gas company, and that he did not see any of the tarry substance above these dolphins.

The president of the gas company was called by the plaintiffs and testified that tho company manufactures nothing hut illuminating gas, except by-products; that those by-products are coke and a residue that comes from the manufacture of gas that is called tar. It was in evidence that ta,r does not float on the water. The plaintiffs filed a memorandum furnished by the defendant covering the year 1929, and showing for each month the amounts of coal used, gas manufactured, and the amount of tho by-products of tar and coke. It is of little, if any, value in determining whether there was any escape of tarry waste, since it does not show the respective proportion of coal gas and water gas which was being manufactured during any period; and the testimony shows that there is comparatively little tar residuum from so-called water gas.

The record cjontains much testimony similar in character to that to which reference has been made. It is impossible, of course, to recite all this testimony, But even if we assume that plaintiffs’ evidence, taken in tile most favorable light for the plaintiffs, might warrant the jury in finding that the oily substance found upon the harbor and under tho wharf where the fire started proceeded from tho defendant’s plant, and not from other sources in the harbor, and by reason of some negligent act or omission on the part of the defendant, and within the defendant’s knowledge and control — the testimony of tho president of the defendant company, however, tends to negative such knowledge — still the burden is the plaintiffs’ to prove, even if the defendant were guilty of negligence, that it was the proximate cause of the fire. Examination of the record, however, leads us to the conclusion that there is no substantial evidence from which the jury could find that tile oil on the water was the proximate cause of the fire, even if the oil came from the defendant’s plant.

It is clear, we think, that the fire was caused by tho dumping of ashes containing live coals and red hot clinkers by the employees of the Portland Terminal Company at their wharf, upon the flats beneath the wharf; hut there is not even a scintilla of evidoneo that the defendant knew that any oil or other inflammable material, whether escaping from its plant or not, would accumulate under the No. 1 wharf of the Portland Terminal Company, or of tho custom of the terminal company in dumping the contents of the fire box or ash box of its stationary engines into the harbor at the close of each day.

The ordinance of the city of Portland of August 10,1923, provides that it shall be unlawful to discharge oil, sludge, etc., into the waters within the limits of the city of Portland, from any wharf, ete., and it provides a punishment for the offense. Chapter 301 of tho Private and Special Laws of Maine 1909, specifically prohibits the throwing of any ashes into the waters of Portland harbor and provides a punishment. This statute is found in tho Special Laws of Maine, but it is of a public and general character. It applies to all persons. There is no restriction of locality which prevents it from being public and “obligatory on all citizens.” Wigmore on Evidence (2d Ed.) Vol. 5, § 2572; Burnham v. Webster, 5 Mass. 266, 269.

Assuming that tho inflammable substance floating on tho waters of the harbor and deposited on, tho flats beneath the No. 1 wharf of the Portland Terminal Company on September 36, 1929, or some part of it, came from the defendant’s plant, there is not even a scintilla of evidence, or any evidence from which it could reasonably be inferred that such material was intentionally discharged into the waters of the harbor by the defendant.

On the contrary, there being no evidence as to how it did escape, if it did, from the defendant’s plant, the presumption is that the defendant obeyed the ordinance of the eity. of Portland and the state and federal law, and did not intentionally discharge, or knowingly permit, any waste prohibited by law to be discharged from its plant into the harbor.

Surely it is not a reasonable conclusion that the defendant would deliberately discharge, or knowingly permit to escape, any of its tar by-products for whieh it had a ready and profitable sale under a contract.

The only conclusion a jury could properly reach from this record, if it found that a tarry by-product of any kind did escape from the defendant’s plant during September 16, 1929, is that it was due to some act of omission on the part of the defendant, since there is no positive evidence as to how it occurred. The plaintiffs, therefore, must show, to establish the negligence o'f the defendant as the proximate .cause of the fixe, that a reasonable man would have anticipated that the result which followed was a probable result of its negligent omission, viz., that not only that inflammable substance would escape from the plant and find its way into the harbor, but that it would eventually be deposited at low tide under No. 1 wharf of the Portland Terminal .Company, and also that the Portland Terminal Company would deliberately, in defiance of city and state law, deposit ashes containing Eve coals on the flats beneath its wharf.

In view of the fact, as the plaintiffs’ evidence shows, that some kind of oil is frequently seen upon the waters of Portland harbor, and in view of the statute affirmatively forbidding the dumping of ashes into Portland harbor, we think a jury would not be permitted to find that in the natural course of events it would reasonably be expected that ashes containing Eve coals and hot clinkers would be thrown into the harbor or on the flats underneath the wharf of the Portland Terminal Company.

In United. States v. Standard Oil Co. of New Jersey, 258 F. 697, 698, 609, the District Court of Maryland held that where a -•fireman on a pile driver, used by his employer in the construction of a pier in the harbor, threw ashes into waters visibly covered by oil, causing a fire whieh destroyed barges and their cargoes, the company for whieh the pier was constructed on a cost basis and whieh was aware that ashes were thrown overboard was liable for the consequences, though the employer doing the work was an independent contractor. The court found that the throwing of the ashes into the harbor violated both the municipal ordinance and the federal law. Judge Rose said:

“It is true that municipal ordinance and federal law prohibit the throwing of ashes into the harbor at all. Doubtless the parties assumed that they were not offending against the spirit of these enactments, as it was the purpose of the Standard thoroughly to dredge the dock so soon as the new pier was finished. Nevertheless the law was broken.

“Apart from, any legislative expression on the subject, every one knew how dangerous it was to throw Eve coals upon oil, even when the latter floated upon water. * * *

“One who throws ashes on the surface of water, visibly covered by oil, is, independent of statute, bound at his peril to make sure that there is no fire left in them. This the fireman failed to do, and for his neglect, his employer must answer to the appellants.”

In Horan v. Watertown, 217 Mass. 185, 187, 104 N. E. 464, 465, in speaking for the Massachusetts court, Mr. Justice Sheldon said: “The rule applicable to such eases is well settled by our decisions. Where as here the original negligence of the defendant is followed by the independent act of third persons whieh directly results in injurious consequences to the plaintiff, the defendant’s earlier negligence may be found to be the direct and proximate cause of those injurious consequences, if according to human experience and in the natural and ordinary course of events the defendant ought to have seen that the intervening act was likely to happen. But if this is not the case, if the intervening act whieh was the immediate cause of the injury complained of was one whieh it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, even though a high degree of caution would have shown him that it was possible, then he owed no duty to the plaintiff to anticipate such further acts, the chain of causation is broken and the original negligence cannot be said to have been the proximate cause of the final injury. Lane v. Atlantic Works, 111 Mass. 136; Stone v. Boston & Albany Railroad, 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794; Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315, 70 ; Jacobs v. New York, New Haven & Hartford Railroad, 212 Mass. 96, 98 N. E. 688, 40 L. R. A. (N. S.) 41. In these eases the earlier decisions are so fully cited that we need not refer to them.”

While in Lane v. Atlantic Works, 111 Mass. 136, the Massachusetts court held that the jury might properly find the defendant guilty of negligence in doing that from which injury might reasonably have been expected and from which injury resulted; and see, also, Ela v. Cable Co., 71 N. H. 1, 51 A. 281, and The Santa Rita (C. C. A.) 176 F. 890, 30 L. R. A. (N. S.) 1210. In Stone v Boston & Albany Railroad, 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794, and in the other eases cited by Judge Sheldon, the correct rulo is laid down which governs the case at bar.

In The Lusitania, 251 F. 715, 732, tho District Court for the Second Circuit held:

“There is another rule, settled by ample authority, viz. that, even if negligence is shown, it cannot be the pi’oximate cause of the loss or damage, if an independent illegal act of a third party intervenes to cause the loss. Jarnagin v. Travelers’ Protective Ass’n, 133 F. 892, 66 C. C. A. 22, 68 L. R. A. 499; Cole v. German Savings & Loan Soc., 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416. See, also, Insurance Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65; Railroad Company v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Insurance Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395; The Young America (C. C.) 31 F. 749. * * *

“The cause of the sinking of the Lusitania was the illegal act of the Imperial German government, acting through its instrument, the submarine commander, and violating a cherished and human rule observed, until this war, by even the bitterest antagonists.”

In Cole v. German Savings & Loan Society, 124 F. 113, 119, 63 L. R. A. 416, the defendant was negligent in maintaining an improperly lighted hall so that it was difficult to see the elevator at a lower floor. A third party, thought by plaintiff to be the elevator boy, and who was not an agent of the defendant, opened the sliding door of the elevator well while the elevator was at another floor. Plaintiff stepped in, supposing the elevator was there, and fell to tho bottom of tho well. The judgment was for the defendant. Speaking for the United States Circuit Court of Appeals in the Eighth Circuit, Judge Sanborn said: “The act of tho strange boy was a violation of the law. It was a tre-pass upon the property and upon the rights of the defendant. The defendant could not foresee or reasonably anticipate, and it was not required to anticipate or to provide for, violations of the law and trespasses upon its property by its fellow citizens. The legal presumption was that this boy and all boys and men would obey the law, would refrain from committing trespasses upon the defendant’s rights of property, and would discharge their moral’and social duties.”

In Jennings v. Davis, 187 F. 703, 713, tho action was by the owner of property against a pipe-line company. The defendant’s pipe-line burst; plaintiff notified it that oil was around the buildings of the plaintiff. Cross, a blacksmith, occupying, one of the plaintiff’s buildings, lighted a fire in his forge with knowledge of tho presence of oil; a fire ensued which destroyed the plaintiff’s buildings. The judgment was for the defendant. Tho United States Circuit Court for the Fourth Circuit said: “In the view which we take of the uncontroverted testimony, the conduct of Cross was negligent. While it is true that ordinarily the question of proximate cause is for the jury, it is equally Hue that, where the evidence is uncontroverted and but one inference should be drawn, tho question is one of law for the court. The record brings the case within this principle. Cole v. German Sav. & Loan Soc., 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416.”

So, too, in Davis v. Schroeder (C. C. A.) 291 F. 47, 52, tho court said: “It is insisted that the question of proximate cause was for tlie jury. Ordinarily this is true, but where there is no substantial evidence upon which a jury can properly render a verdict in favor of tlie party producing it, the court should instruct a verdict.”

Again, in Glassey v. Worcester Consolidated Street Railway Co., 185 Mass. 315, 316, 70 N. E. 199, 200: “The material facts, with tho inferences to bo drawn from them, axe not in dispute, and in such a ease the question of remote or proximate cause is one of law for the court. Stone v. Boston & Albany Railroad, 171 Mass. 536, 543, 51 N. E. 1, 41 L. R. A. 794; McDonald v. Snelling, 14 Allen, 290, 299, 92 Am. Dec. 768; Hobbs v. London & Southwestern Railway, L. R. (1875) 10 Q. B. 111-122,”

In the instant ease, the act of the employees of the Portland Terminal Company in throwing ashes containing live coals and hot clinkers on the flats underneath the wharf in Portland harbor was the cause of the fire. This act was in violation of a statute affirmatively forbidding the dumping of ashes into Portland harbor. Independent of any ordinance or statute, we think a jury would not be permitted to find that it could reasonably be expected that ashes containing live coals and hot clinkers would be thrown into Portland harbor where oil of some kind is frequently floating on the water.

Upon a careful study of the record, we are of the opinion that, inasmuch as there was no substantial evidence that any negligence which could be imputed to the defendant was the proximate cause of the fire, the District Court properly ordered a nonsuit.

The judgments of the District Court are affirmed, with costs for the appellee in this court.