Commercial Ice Co. v. Philadelphia & Reading Railway Co. , 197 Pa. 238 ( 1900 )

Opinion by

Mb. Justice McCollum,

The only question presented for our consideration on this appeal is whether the learned court below erred in directing the jury to return a verdict for the defendant and in entering a judgment thereon. The suit was instituted and tried in a court of common pleas in Philadelphia and appears to have been based on the alleged negligence of the Philadelphia and Reading Railway Company. It seems that at about seven o’clock on the morning of February 9,1897, a freight train in the control of the defendant company was obstructed by the derailment of four of its cars at or near the East Mahanoy Tunnel. One of the derailed cars was a tank ear containing about 6,000 gallons of oil, and from the hole in it, caused by the derailment, at least two gallons a minute escaped. The inhabitants residing in the vicinity of the wreck having learned of the derailment and its consequences, provided themselves with buckets, pails and other conveniences for the collection of some of the oil, which escaped through the hole in the tank, for their own use. It was a comparatively small part of the oil which flowed through the breach in the tank that was collected in the neighborhood of the wreck. An effort was made to close the breach in the tank but it was unavailing and the oil continued to flow through the opening caused by the derailment. Resort was then had to pumping the oil from the tank through a trough into an empty oil car procured to receive it, but a high wind was blowing from the east, which when the oil came out of the mouth of the pump to the trough, carried a considerable portion of it from the main tank over towards, and across the siding. The pumping was continued from the time it commenced until dark, a period of at least four hours. At that time the oil had flowed through the hole in the tank from ten to eleven hours at the rate above stated and the conclusion arrived at was that under the circumstances the pumping should be abandoned and the valve at the bottom of the tank should be opened. The conclusion reached was acted upon and the bulk of the oil then in the tank escaped during the night through the open valve and the breach in the tank which was the result of the derailment of the car.

It is conceded by the Commercial Ice Company that the defendant company is not chargeable with negligence in the derailment of the cars which constituted the cause of the wreck and its consequences. It does not allege that the defendant is responsible for the loss incurred or damage done by the flow of the oil through the hole in the tank, but it charges the defendant with negligence in opening the valve of the tank and allowing the' oil to flow through it. This is certainly an insignificant claim in view of the fact that according to the testimony of the plaintiff’s principal witness, at least one thousand gallons of oil flowed through the hole in the tank into the dirt on the bank of the railroad and from it into the streams which carried the oil into the plaintiff’s ice pond. It cannot be doubted that the oil which passed through the hole in the tank before the valve was opened was more than sufficient to destroy all the ice which then remained in the pond. In view of these obvious facts we are satisfied that the learned court below committed no error in directing the jury to return a verdict for the defendant.

Judgment affirmed.