Chester National Bank v. Southern Pipe Line Co. , 40 Pa. Super. 87 ( 1909 )

Opinion by

Head, J.,

The appellant does not contend that the learned trial court improperly admitted or rejected any evidence on the question of the alleged negligence of the defendant; nor that the existence of such negligence should have been declared as a matter of law; nor that, in submitting this question to the jury, any erroneous instructions were given. In so far, therefore, as the plaintiff rested its case on the proposition that the defendant was negligent it is concluded by the -verdict, which establishes there was no negligence either in the construction, maintenance or operation of the defendant’s pipe line.

The plaintiff, however, contends its right to recover exists independent of any act of negligence by the defendant because the company was incorporated in 1890, as an oil pipe line company, under the provisions of the act of 1874, and its supplements. That the Act of June 2, 1883, P. L. 61, which is a supplement to the act of 1874, contains this proviso: “And provided further that any company laying a pipe line under the provisions of this act, shall be liable for all damages occasioned by leakage, breaking of pipes or tanks, etc.”

That, as a result of this enactment, there was imposed on the defendant the liability of an insurer against all injuries to person or property that would follow or be caused by a leak in its line.

Inasmuch as the learned court below held with the plaintiff on this question, and the defendant has not appealed, the correctness of this conclusion is not now before us for review and we express no opinion concerning it.

In so holding, however, the court confined the liability of the defendant to such injuries as were the natural and probable consequences of the leakage in its line; in other words, to the results of which the leakage could be legally said to be the proximate cause. To the correctness of this the learned counsel for appellant frankly assents.

But the court submitted to the jury, as a matter for their determination under all the evidence in the case, the question whether or not the break in the defendant’s pipe line and the consequent escape of the oil, was the proximate cause of the burning of the plaintiff’s mill. If this action of the learned trial court was correct this appeal presents but little else on which we could be asked to reverse the judgment.

Our books of reports exhibit a multitude of cases in which our courts have pointed out how the proximate cause — legally speaking — of the last of a chain of events, may be distinguished from an intervening or independent cause. Most if not all of these cases were actions founded on negligence. In Hoag v. Railroad Co., 85 Pa. 293, Mr. Justice Paxson, speaking for the court, said: “In determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” This language has been frequently cited with approval: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Morford v. Sharpsville Borough, 28 Pa. Superior Ct. 544,—and leaves nothing further to be said on the subject.

Now we think it must be conceded that if, in the disposition of a cause, it becomes necessary to ascertain what is reasonable, ordinary, natural or probable, our only recourse is to the common experience of average men and, under our system of jurisprudence, the jury has long been thought to be the tribunal best qualified to determine and declare the result. We may grant that courts not infrequently have to deal with situations of such constant recurrence that the rule of the reasonable and ordinary has become so manifest and so generally recognized that it may be properly formulated into a rule- of law. But, as we said in Portland Ice Co. v. Connor, 32 Pa. Superior Ct. 428, “ When conditions group themselves into unusual or varying forms; when the inference to be drawn established facts may change with the personality of him who makes them; when the mind hesitates to affirm just what a reasonable man would likely do under the circumstances, then the ascertainment of the legal duty becomes a mixed question of law and fact and must be submitted to a jury.”

The important facts in the case, and they may be fairly said to be without dispute — as we gather them from the record and from a detailed plan, drawn to a scale and conceded to be correct, may be thus stated: The pipe line of defendant, buried in the ground, crossed the Chester pike at a point about 700 feet west of Crum Creek. This stream is shown on the plan to be from eighty to 100 feet wide. It is said by the appellee, in its paper-book, that it is a tidal stream. The evidence is silent on the subject, but, if it be a fact, it is such a physical fact of nature, that a court could properly take judicial notice of it without evidence. The highway is carried across this stream by a tight bridge. Just below the bridge and a few feet back from the east bank of the creek stood the mill of the plaintiff. There is-shown a narrow channel probably at one time a mill race, through which the waters of the creek, when at a sufficient stage, could flow to the walls of the mill building. The distance from pipe line to mill was 807 feet. The ground gradually sloped from line to stream, the fall to the water surface being sixteen feet in the distance mentioned. The break probably occurred about eight o’clock in the morning, and the oil began to flow, first in the water tables, then gradually spreading over the road itself and finally upon and over the flat land adjoining on both sides. The map shows that on the north side of the road,’ where the bulk of the escaping oil was carried, the ground for about 300 feet west of the creek is a dead level.

A number of people quickly gathered. One of these, a stranger to the defendant, in no way under its control, a mere idler on the scene, ignorant or heedless of the manifest danger of such an act lighted a cigar and threw the blazing match on the ground. Instantly the oil was aflame. By this time a considerable quantity of it had evidently reached the creek and spread over its surface. One witness, describing the swift, almost instantaneous, spread of the flames, said: “When it struck the creek this arch over the road formed the furnace for it, like, and it ran both ways.” The condition of the water was such that the blazing oil was carried right up to the walls of the plaintiff's mill and it was destroyed. As soon as the oil that had escaped, before it was fired, had been consumed, the flames naturally receded to the immediate locality of the break and there continued to burn until the flow of oil in the line was stopped.

It seems clear enough to us that the destruction of the mill, under these circumstances, was in no sense the necessary or inevitable consequence of the break in the pipe. It was not even within that domain of imminence or probability that would have existed had the defendant, in the prosecution of its own business, maintained a fire near its line from which the flames were communicated to the escaping oil. We must now concede the possibility that a grown up man, through ignorance, curiosity, or general heedlessness might cast a burning match practically into a stream of flowing oil; but it is not too much to say that such an act would be about the last to be expected from a rational human being.

The Deshong house, which stood about halfway between the break and the creek and within, perhaps, fifty feet of the point where the fire started, escaped, while the mill was destroyed. Had the match come a little sooner, before any body of oil had reached the water, the oil would have been consumed, the mill saved. If the stream be a tidal stream, one stage of the tide would have carried the oil away from the mill until the flames had expended themselves. Under certain conditions of wind and current the burning oil might have been carried downstream close to its west bank, passing the mill but destroying some other building lower down.

Under the facts we have recited and the possible — and more or less probable — conditions to which we have adverted, the learned trial court did not undertake to declare, as matter of law, that the plaintiff’s loss was due to the intervention of an independent cause, thus relieving the defendant from responsibility. Conversely, to have instructed the jury that the break in the line was the proximate cause of the burning of the mill, leaving to them merely the assessment of the damages, would have been, in our opinion, a stretch of judicial power beyond the limits of established precedents. The submission of the question to the sound discretion of the jury, under proper instructions, was a disposition of the case in harmony with the long line of authorities cited by counsel on both sides.

The case of Koelsch v. Phila. Co., 152 Pa. 355, we cannot regard as authority for the appellant’s contention that the court below should have disposed of the question of proximate cause as a matter of law. There the defendant had negligently permitted gas from its line to fill plaintiff’s cellar. It sent an employee, Householder, to find or repair the leak. One Walters went with him. He was either a fellow servant or .a volunteer. One of them struck a match in the cellar and the explosion followed. The court below submitted the case to the jury, saying: “In our opinion it makes no difference whether Walters struck the match or the agent of the company, they were both together in a common employment.” A verdict and judgment for the plaintiff followed. But neither in the facts of the case, nor in the opinion of the Supreme Court affirming the judgment, can we discover any foundation broad enough to support the conclusion which the able counsel for appellant seek to rest thereon.

In a portion of the considerable excerpt from the charge, which is made the subject of the first assignment, there is undeniably some confusion or obscurity probably due to haste incident to a trial. Reading part of it by itself might leave the impression the court regarded the existence of the water in the creek, even under normal conditions, as measuring up to the standard of an independent cause. If so, this was almost immediately corrected, and we think when the charge is regarded as a whole, the jury must have correctly understood the nature of the question submitted to them.

Being of the opinion the case was tried along proper lines and that the record exhibits no reversible error, the assignments are all dismissed.

Judgment affirmed.