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Vol. IV.]

Elkins v. McKean.

(No. 1.

kins, Ball." Witne don't claimomebody else no other. he inferred thalle

barrel which they got from Caskey; that barrel was empty when they got it.

J. M. Torrence, salesman for Arbuckle & Co., testified: On or about January 11, 1873, that firm sold oil to Caskey ; it was the Riverside brand manufactured by Elkins, Bly & Co.; the brand on the barrel was “Elkins, Bly & Co.," the name of the oil would be carbon oil; it was called Riverside oil; that was the name of the refinery. The fire test at that time for Pennsylvania was 110°, and it was marked on the barrels ; no oil was sold to Caskey after January. Steele & Hart bought a barrel February 10th. Witness took the inventory of Caskey's goods at the time of his sale to Steele & Hart; he then saw a barrel then in the cellar, but did not examine if there was oil in it; he saw the tin can from which they retailed upstairs; the oil purchased by Arbuckle & Co., and sold to Caskey and Steele & Hart, was purchased from Elkins, Bly & Co.; Arbuckle and Co. never drew the bungs; they sold the oil as they received it in perfect confidence, relying on the manufacturers. All the recollection of the witness was from the entry in the book, and he inferred that it was the Riverside brand, because they kept no other. “ They may have bought that barrel of oil from somebody else, but our books show a sale of a barrel of oil. I don't claim to have any personal knowledge of the sales at all.” Witness did not know that the Arbuckles bought from Elkins, Bly & Co., except by the books; Arbuckle bought directly from the manufacturers. Oil the Arbuckles would sell in January and that they would sell in February would not come from the same lot. The way they purchased oil from Elkins, Bly & Co. was to buy a lot and take it away as they needed it; all their oil was bought from Elkins, Bly & Co.

W. J. Caskey testified that in January, 1873, he sold his store to Steele & Hart; amongst other things about one third of a barrel of oil in a tin can ; the oil was purchased from Arbuckle & Co.; he did not recollect the brand of the oil ; on the day after the death of McKean he was at Steele & Hart's store, and saw some oil taken out of the can; the oil was tested in the way they usually tested it, by drawing a match on it ; it ignited, he had often done that before and it put the match out; witness could not tell whether that was the same oil he had sold to Steele & Hart; witness had been getting oil from different places; the last few barrels he had got from Arbuckle ; he bought most of his oil from Arbuckle ; he had frequently tested the oil he got from Arbuckle by a match, and it put it out; what he got from Arbuckle always stood the test.

Plaintiffs proposed to show by J. R. Neald, United States Inspector of Steamboats, to show the tests applied (and their results) to the oil obtained from Coroner West and Fire Marshal Butler, and which they obtained from Steele & Hart, alleged to be part of the same sold by them to deceased, and manufactured and sold by Elkins, Bly & Co., defendants, to the said Steele & Hart, and this to prove that the oil manufactured and sold by them, and by which deceased came to his death, was defective and dangerous.

The defendants objected to the above.

First, because the plaintiffs have proved in chief that the oil subjected to test was not the same oil which was in the lamp alleged by them to have exploded and caused the injuries complained of.

VOL. IV.

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Vol. IV.)
Vol. IV.)
ELKINS v. McKEAN.

[No. 1. The objection was overruled and a bill of exceptions sealed for defendants.

The plaintiff gave other testimony in support of her case, not bearing on the question whether the oil in McKean's lamp had been manufactured and sold by defendants as safe illuminating oil. For defendants Emma Bear testified that at the time McKean was burned, his wife, the defendant, came up out of the cellar saying her husband had tripped over a piece of wood and fallen,

The defendants gave evidence also for the purpose of showing that the oil by which McKean was injured was not oil sold by defendants as safe illuminating oil, and that the oil tested for the coroner's inquest was not the oil from which McKean had procured that used in his lamp.

The court charged :

.... [" The first question will be was the death of James B. McKean occasioned by the explosion at the time and in the manner claimed by plaintiff. In regard to this there can be no doubt whatever.]

6. The next question will be was the identical oil which caused his death manufactured and sold by defendants as claimed by plaintiff ? If it was not, there can be no recovery and your verdict must be for the defendants, and the burden of showing to your satisfaction that it was the identical oil rests upon the plaintiff; they having alleged it, the burden of proof is upon them. If you should get beyond this question, the next one which presents itself, and possibly the most important question in the case, is, did the defendants wilfully and maliciously put it upon the market knowing it to be, as they allege in their declaration to be, unsafe, explosive, dangerous, and unfit for illuminating purposes; because if they did not, under these allegations contained in this declaration or statement of their cause of action, there can be no recovery, and your verdict must be for the defendants. Here again, too, we must remind you the burden of proof is upon the plaintiff, and the necessity of satisfying you in this important particular is a labor which the law wisely imposes upon them, and from which they cannot escape. If they have not so satisfied you, as I have already intimated, there can be no recovery, and your verdict must be for the defendants.” ....

The following are points of defendants ; they were all refused :

2. “ If the jury find that the oil in controversy was sold in large quantity to Arbuckle & Co. by the defendants, Elkins, Bly & Co., by Arbuckle & Co. to W. J. Caskey, by W. J. Caskey to Steele & Hart, and by Steele & Hart to the deceased, the plaintiff cannot recover in this action."

3. “ There is no evidence in this case which would justify the jury in finding that defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe, and dangerous.”

6. “Under the pleadings and evidence, the plaintiff is not entitled to recover.”

The verdict was for the plaintiff for $3,500. The defendants took a writ of error ; they assigned for error: — 1. Admitting evidence of the declarations of the deceased. 2. Admitting evidence of the tests applied by the coroner's inquest. 3. The part of the charge in brackets.

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Vol. IV.]

ELKINS v. McKEAN.

[No. 1.

Keighron, 249 dangerous and te of such characteemote and proximhenthaler

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4-6. The answers to defendants' points.

Duff f Leggat and Marshall f Patterson, for plaintiffs in error. The action for McKean's death could be sustained only against those who sold the oil to him. If it had not been for the intervention of a third party, the defendants' negligence would have produced no injury to McKean; the defendants therefore are not liable. Wharton on Negligence, $$ 134, 439, 440; Loser v. Clute, 51 N. Y. Rep. 494 ; Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith, 353; Carter v. Town, 103 Mass. 507.

W. 0. Crawford, A. L. Pearson f W. D. Moore, for defendant in error. The persons who manage dangerous agencies by which others may be injured are responsible for negligence; Wharton on Negligence 781, 786 ; although there may be intervening agents. Norton v. Šewall, 106 Mass. 507; Thomas v. Winchester, 2 Selden, 397; Dixon v. Bell, 5 M. & S. 198; Carter v. Town, 98 Mass. 567; Oil Creek f A. R. Railway v. Keighron, 24 P. F. Smith, 316; Barney v. Bustenbinder, 7 Lansing, 210. If one sells a dangerous and explosive Auid without giving notice of its character to a person ignorant of such character, he is liable. Wellington v. Downer Ker. Oil Co. 104 Mass. 64. As to remote and proximate cause they cited Morrison v. Davis, 8 Harris, 175; Lockhart v. Lichenthaler, 11 Ib. 164; Scott v. Hunter, Ib. 195; Fleming v. Bock, 12 Ib. 313 ; Pittsburg v. Grier, 10 Ib. 54; McGrew v. Stone, 3 P. F. Smith, 441; Pennsylvania Railroad Co. v. Kerr, 12 Ib. 367.

Chief Justice AGNEw delivered the opinion of the court, January 6, 1876.

This was an action by the widow of James McKean against Elkins, Bly & Co., manufacturers of refined petroleum or carbon oil. McKean died of burns received, either from the explosion of a lamp carried in his hand, or from a fall breaking the lamp and setting the oil on fire. The action was founded on the allegation that the defendants wilfully made and sold the oil for lighting purposes, knowing that it was highly inflammable, explosive, and unsafe, and therefore unfit for use as a light. The case went to the jury distinctly on this proposition, the judge having charged in these words : If you should get beyond this question to wit, the identification of the oil as made by the defendants), the next one which presents itself, and probably the most important question in the case, is, did the defendants wilfully and maliciously put it upon the market knowing it to be, as they allege in their declaration, unsafe, explosive, dangerous, and unfit for illuminating purposes; but if they did not, under these allegations contained in this declaration or statement of their cause of action, there can be no recovery, and your verdict must be for the de fendants.” According to this instruction no question of mere negligence, in putting the oil upon the market, arose or was presented to the jury; but their verdict of necessity must be founded upon the evidence of a wilful sale of such unfit oil, with a full knowledge of its inflammable and explosive character. Upon this precise statement the fifth and sixth assignments of error arise, that the court refused to say there was no evidence which would justify the jury in finding that the defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe, and dangerous; and also that under the pleadings and evidence the plaintiff was not entitled to recover. Upon a careful review of the whole evi

Vol. IV.)

ELKINS v. McKpan.

[No. 1.

the defeateele d used forstilling

dence there appears to be none to justify the submission of the fact of the wilful sale by the defendants of such an explosive and unfit oil for burning purposes with such a wilful and malicious knowledge as that set forth in the instruction. Indeed there is no evidence wbat the precise business of Elkins, Bly & Co. was — what they manufactured, or what they sold; or that the oil in question coming from their house was sold as illuminating oil. That they made and sold illuminating oil appears from the barrels bearing their name, and the fire test, 110°, marked upon them, and from the testimony of J. M. Torrence; but that their business was confined to this branch alone does not appear. The contrary may well be inferred from the nature of the business of distilling crude petroleum in which various products are given off, used for different purposes. That the oil in the can out of which Steele & Hart filled McKean's lamp came from the manufactory of the defendants may also be inferred from the evidence ; but that this particular oil was sold by them as illuminating oil appears nowhere. The only testimony tending to identify the purchase of this oil, as from the defendants, is that of J. M. Torrence, the salesman of Arbuckle & Co. who sold the oil to Caskey. But Torrence does not undertake in the slightest degree to identify the sale of this particular oil, or to state for what purpose it was sold by the defendants, or to prove facts which would show that if it was the same oil, it was not delivered through accident, but must have been an intentional sale for lighting purposes of a product known by them to be below the proper fire test. The sum of his testimony is that Arbuckle & Co. were in the habit of buying large quantities at a time of oil in barrels, and having it delivered in small quantities to suit their sales, and that the books of Arbuckle & Co. show the sale of a barrel of oil to Caskey on the 11th or 12th of January, 1873. But Caskey testifies that he frequently tried the oil bought of Arbuckle & Co. and found it always to bear the proper test. . The only oil which did not bear the test was that found in the can a day or two after McKean's death; and whether this was the same oil with which McKean's lamp was filled is left to depend upon the contradictory testimony of Steele and the boy Fedder, as to when the new barrel of oil was pumped into the can by Steele. And if it were the same, we are still met by the difficulty that there is no evidence that this particular oil was sold by Elkins, Bly & Co. for illuminating purposes. It may have been sold in a mistake, or may not have been sold as bearing the fire test of 110°, but as one of their other products. Thus, upon the whole evidence, the turning fact of the case, viz. : a sale of this oil for illuminating purposes, with a guilty knowledge of its unfit and explosive character, is wanting in order to support the submission of the fact to the jury. This must reverse the judgment.

The judgment must be reversed also on the third assignment of error, though I am inclined to believe it was an error of inadvertence. “ The first question (said the judge) will be, was the death of James B. McKean occasioned by the explosion occurring at the time, and in the manner claimed by the plaintiff ? In regard to this there can be no doubt whatever.” But if the testimony of Mrs. Emma Bear be believed (and it was for the jury to determine this), McKean's death was the result of his tripping over a piece of wood in the cellar, in consequence of which he Vol. IV.]

ELKINS v. McKEAN.

[No. 1.

must have fallen and broken his lamp; and was not the result of a mere explosion of the gas in the lamp. The fact of such an explosion stood at the very threshold of the case, and in the face of this contradictory evidence it was too strong an affirmation of the fact, to tell the jury there could be no doubt that McKean's death was occasioned by the explosion at the time and in the manner claimed by the plaintiff. There is no doubt that his death was caused by the burning oil at the time and place claimed by the plaintiff, and this is probably all the learned judge meant. But we must take the record for our guide, and when he said there was no doubt that the death was caused by the explosion in the manner claimed by the plaintiff, he asserted too strongly, in view of the contradictory evidence.

The other assignments of error are not sustained. What McKean said as to the cause of the accident when found enveloped in the flames of the oil, or within a few minutes afterwards, was clearly competent evidence as a part of the res geste. This is so fully reasoned out and sustained in the following case, nothing can be said to make it plainer. Tompkins v. Sattruck, 14 S. & R. 275 ; Deardorff v. Hildebrand, 5 Rawle, 226; Cattison v. Cattison, 10 Harris, 275. The case of Fawcett v. Bigley, 9 P. F. Smith, 411, was decided on a different principle. This was an attempt to make the narration of an agent of a past transaction evidence against his principal, and was not competent. It was especially so when the agent had an adverse interest to relieve himself by his statements of the consequences of his own negligence.

As to the second assignment of error the reason given for excluding the evidence of the tests applied to the oil was unfounded. On the question of the identity of the oil in the can to which the tests were applied, the testimony of young Fedder and Steele were in direct contradiction. If Fedder were believed Steele did not pump the new barrel of oil into the can until after the oil had been taken out which was the subject of the tests. The case must of necessity have gone to the jury on the facts.

Nor can the fourth assignment of error to the refusal to affirm the defendants' second point be sustained. The substance of that point is, that after the oil had passed from the defendants in large quantities to Arbuckle & Co., and from them in smaller quantities to Caskey, and from Caskey to Steele & Hart, who sold the lampful to McKean, there can be no recovery. The argument in support of this point is founded upon the alleged successive intervening liabilities of the persons through whose hands the oil had passed. But this proposition is unsound as a legal defence. The number of hands through which the oil had passed might furnish a strong argument on the question of identity, and the guilty knowledge of Elkins, Bly & Co. as to this particular oil, but could not constitute a legal bar to recovery, if the identity of the oil and the guilty knowledge were made clear. Certainly one who knowingly makes and puts on the market for domestic and other use such a death-dealing fluid, cannot claim exemption from liability for his terrible wrong, because he has sent it through many bands. The length of its passage may create a doubt of its identity, or that it was sent on its mission of destruction with a full purpose and knowledge of its dangerous qualities, but the facts being established, he cannot escape the consequences of his crime

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