Kearner v. Charles S. Tanner Co.

This is an action of trespass on the case for negligence, brought by the widow of Albert C. Kearner in her capacity as administratrix of his estate, to recover, for the benefit of herself and minor children, damages from the defendant corporation, arising from the death of her intestate husband, which she alleged was caused by the negligence of the *Page 204 defendant company on the twelfth day of February in the year 1908. The case was tried in the Superior Court before a jury, and resulted in a verdict for the plaintiff, which the justice presiding at the trial refused to disturb upon a motion for a new trial, and the case was brought to this court upon the defendant's exceptions to various rulings of said justice, including his denial of the motion for a new trial. It appears in evidence that on the day aforesaid, between 4:10 and 4:30 o'clock in the afternoon, two or more explosions occurred in a building on the easterly side of South Main street, between Coin and Silver streets, in the city of Providence, Rhode Island, which threw the stone walls of the building down into South Water street, as well as into Coin street, on the corner of which streets the body of said Albert C. Kearner was found the next day under the debris. It was admitted at the trial that the death of the plaintiff's intestate was caused by portions of the wall of the building falling upon him, and that he was rightfully upon the highway as a traveller and in the exercise of due care at the time. The building, which was wrecked by the explosion and partially consumed by the ensuing fire, was a structure three and a half stories in height; was about eighty feet in length by about forty-eight feet in width, and was bounded as follows: On the North by Silver street; on the east by an area or alleyway, running from Silver street to Coin street; on the south by Coin street; and on the west by South Water street. With the exception of two rooms on the ground floor, the entire building was occupied by the defendant company and used in the manufacture of starch, gums, and dextrine. These two rooms were occupied by Abbott L. G. Chase, a grocer and ship chandler; one was on the corner of Coin and South Water streets and fronted on the latter. It was about eighteen feet in width by about forty feet in length, and was used by Mr. Chase for his grocery store. The other, a room of equal size, separated from the grocery department by a brick wall, adjoined it on the north and also had its entrance on South Water street; this room was used by Mr. Chase for his ship-chandlery shop. The rear wall at the easterly extremity of *Page 205 these rooms was about two feet distant from the westerly end of the furnace and oven-room of the defendant, and the northerly wall of the chandlery shop was about half way between Coin and Silver streets. There was no communication between the two rooms aforesaid or between the premises of Mr. Chase and those of the defendant, while there was free communication between the several parts of the building occupied by the defendant. The remainder of the ground floor of the building was used by the defendant, which had its offices in the room at the corner of Silver and South Water streets, and the next room, south of its offices and between them and the ship-chandlery shop of Mr. Chase, was a room occupied by the defendant for storage purposes. In the rear of its offices was another storage room, and beyond that to the east was its engine room. To the east of the building occupied by Mr. Chase and the defendant as aforesaid, was another two-story building adjoining the northerly half of the first mentioned-building, the ground floor of which was used by the defendant in part for storage and furnace and boiler rooms. There were four furnaces in all, which, for the purposes of the trial, were described, as though numbered from north to south, 1, 2, 3, and 4. This building measured about thirty feet in width and extended from Silver to Coin streets. The portion that adjoined the premises already described as occupied by the defendant consisted of a room used for storage, the boiler and furnace No. 1, while furnaces numbers 2, 3, and 4 were opposite the rear end of the premises occupied by Mr. Chase but separated therefrom by a space, measuring one and one-half to two feet in width, between the exterior walls of the buildings. The furnaces were on the east side of the building wherein they were located. The next building east of the one in which the furnaces were contained was a double tenement house which fronted on South Main street, and extended from Silver to Coin streets; its western, or rear, wall for a distance of about fifty-six feet, from Silver street southerly was twenty-two feet distant from the furnace building of the defendant, and for a distance of about twenty feet from Coin street northerly was *Page 206 only sixteen feet from the defendant's said building. In other words, there was a projection in the rear of the tenement house which made it six feet nearer to that part of the building containing furnaces numbered three and four than it was to the remainder of the building. The oven-room where the products of the defendant's manufacture were baked, was directly over the furnace room, but there was no flooring between the furnaces and ovens which were directly over them; the floor between the furnace room and the oven-room stopped at the entrances to the ovens. Each oven had two iron doors, which were set in grooves and could be raised by handles with the aid of counter-weights. Rails were laid inside of the ovens, from the doors to the rear of the oven chambers, and between these rails were placed strips of sheet-iron, which could easily be sprung in or out, for the purpose of equalizing the heat in the oven. These rails supported trucks holding pans in which starch was baked. Oven number four was piped in such a manner that it was possible to carry hot gas from the furnace into and around the oven when required. To accomplish this purpose pipes had been connected with the chimney pipe at a point between the damper and the furnace bed, which after passing around the interior of the oven returned to the chimney pipe at a point beyond the damper, so that, when it was necessary to create in the oven the degree of heat required to bake starch, a temperature ranging from 220° to 300° Fahrenheit, according to the testimony, the damper would be closed and thereby the hot gas would be caused to circulate in and around the oven and from thence into the chimney by this indirect route, which was from twenty-five to thirty feet more than the distance from the furnace to the chimney through the chimney pipe. Fifteen minutes before the explosion two men were working in the oven-room in front of the ovens, and had nearly filled all the pans provided to be use for that baking. Oven number four was to receive the first load. In the morning after the explosion one door of oven number four was found partly raised, bent over at the top and wedged in its groove, and the other *Page 207 door was found lying on top of the oven together with part of the roof of the building. The interior of this oven was somewhat damaged at the top and to the right of the door nearest Coin street, and the heat-radiating pipes therein were found burst open at the joints. In a section of this pipe between the furnace and damper was found a corroded hole about two inches long and several smaller corroded holes large enough to admit the insertion of a lead pencil. The fire-box door was found closed; in the furnace bed there was a circle of unconsumed coal forming an outer rim of about four inches in width, while in the center was a circle of coal burned to ashes. The diameter of this furnace bed was fourteen inches. The damper in the chimney pipe was found partly closed. The oven-room was found to contain more or less wreckage, and brick from the outer wall in rear of the ovens was found in the alleyway adjoining the building. The plaintiff contended that the death of her husband was caused by the wrecking of the building through an explosion caused by the negligence of the defendant; that this explosion was the result of fire coming into contact with starch dust, which was shown to be present in large quantities upon the premises of the defendant, and also was shown to be highly explosive under certain conditions. The defendant did not deny that there was an explosion of starch dust upon its premises, and that this explosion was the cause of the principal damage to the building, but it contended that the initial, and more violent, explosion occurred in the ship-chandlery shop of Mr. Chase, whence it was transmitted to the defendant's premises and caused the second explosion. No eye witness testified that the first explosion occurred in Mr. Chase's shop, but the theory of the experts who testified in behalf of the defendant is that the first explosion occurred in the shop of Mr. Chase and was the result of spontaneous combustion; that in the storage room of Mr. Chase were a great variety of highly inflammable and explosive substances, including tar, pitch, turpentine, rosin, kerosene, linseed oil, oakum, and solarine, a polish composed partly of naptha. No fire was kept in this storehouse, and the lantern used to illuminate the place was *Page 208 generally lighted in the other store. If the first explosion occurred within the premises of Mr. Chase, hereinbefore described, and threw down a wall belonging to the same, which fell upon and killed Mr. Kearner, the plaintiff can not recover in this action; but if the deceased was crushed to death by fragments of a wall, in that portion of the building aforesaid, which was occupied by the defendant, which was thrust out upon him by the force of an explosion of starch dust which the defendant negligently had allowed to accumulate upon its premises in the building aforesaid, another, and a totally different, question would be presented. There are at least three theories that might be presented in explanation of the cause of the accident in this case: first, that the initial explosion occurred in the ship-chandlery shop upon the Chase premises and by direct action threw down the wall upon and thereby caused the death of the plaintiff's intestate. Second: that the first explosion occurred upon the premises of the defendant and either directly or indirectly, by means of another explosion, upset the wall which fell upon and killed the decedent; or, third, that the initial explosion occurred upon the premises of Mr. Chase, through spontaneous combustion or by reason of the negligence of Mr. Chase or otherwise, and communicated with and caused an explosion of starch dust upon the premises of the defendant whereby the walls which fell upon and killed Mr. Kearner were thrown down. As it appears that the portions of the building which fell upon and killed Mr. Kearner came from the premises of the defendant, probably from the walls of the second story, and not from the premises of Mr. Chase, it will be unnecessary to consider the first theory. The second theory is the one advanced in behalf of the plaintiff, and the third theory is that of the defendant. It was assumed by the court, as well as by the counsel for the respective parties, and in substance the jury were instructed, that if the third theory should be adopted by them, a verdict for the defendant must necessarily ensue. That is to say, that the doctrine of concurring causes is not applicable in the case of successive explosions communicated from the premises of one person to those of another. As the *Page 209 jury found for the plaintiff, the question of the correctness of the assumption is not presented for our determination in the present case, and the same may be dismissed without further consideration. In the trial of the case the parties advocated their respective theories aforesaid, and each offered evidence tending to support his own and to weaken that of his opponent. The efforts of the plaintiff in this behalf necessarily were limited by the scope of her declaration wherein she sets out the negligence of the defendant, resulting in the death of her husband, in six counts, the gist of which may be said to be the following: First. That the defendant allowed dangerous gases to accumulate and explode upon its premises. Second. That it allowed gas, fumes, and vapor to escape from the pipes of its furnace and ovens and to come into contact with starch dust in the oven-rooms and thereby cause an explosion. Third and sixth. That it failed to inspect the pipes leading from the furnaces to the ovens. Fourth. That it so managed its business as to cause an explosion. Fifth. That it allowed the air of the oven-room to become impregnated with starch dust. By its plea of not guilty to each of said counts, the defendant put in issue the foregoing allegations of fact. After verdict, the defendant duly filed its motion for a new trial; alleging therefor nine causes, as follows: "First. Because the verdict is against the law and the evidence, and the weight thereof. "Second. Because the testimony fails to show that the defendant was guilty of any negligence. "Third. Because the testimony fails to show that the defendant was guilty of the negligence alleged against it in the several counts of the plaintiff's declaration. "Fourth. Because the testimony fails to show that any negligence of the defendant, as alleged in the several counts of the plaintiff's declaration, was the proximate cause of the accident. "Fifth. Because the plaintiff failed to sustain the burden of proof cast upon her by law. *Page 210 "Sixth. Because the defendant fully met whatever burden was cast upon it by the doctrine of `res ipsa loquitur' and no negligence on its part, as the proximate cause of the accident, appeared. "Seventh. Because the testimony showed that the proximate cause of the accident was an event happening upon the premises of a third person, beyond the defendant's control, and for which thedefendant was in no way responsible. "Eighth. Because the damages awarded by the jury are not sustained by the evidence. "Ninth. Because the damages awarded by the jury are excessive and unjust." Said motion was denied by the justice of the Superior Court for the reasons contained in the following "DECISION.