On appeal from the Supreme Court.
For the defendant-appellant, John Milton.
For the plaintiffs-respondents, Arthur T. Vanderbilt.
The opinion of the court was delivered by
BODINE, J. The defendant appeals from a judgment in behalf of the plaintiffs. The case was tried without a jury and the damages in the event of a recovery were stipulated.
The defendant possessed an oil refinery on the west side of Staten Island Sound. On the water side of the plant is a dock for the receipt of crude petroleum. Beyond the vacant land to the south is the plant of the American Cyanamid Company. Beyond the vacant land to the north lies the plant of the Sinclair Oil Refinery. Beyond the Sinclair plant is that of the Grasselli Chemical Company, and beyond it the docks and plants of the plaintiffs -- oil refiners.
On the afternoon of September 13th, 1929, the wooden barge, "James Horan," chartered by the defendant, was used to bring a cargo of crude oil to the defendant's dock from the steel tanker "Cecil County," lying in the Sound. The barge, an old one, had a single wooden hold and was
moored to a wooden dock. Early the next morning she was observed to be on fire. The night superintendent had ten men available. He procured a hose and ran a fire stream through to the dock. He telephoned the New York fire department and finally cut the barge loose. The wind was blowing away from the defendant plant. The tide was running north so that the men available were obliged to fend the barge off from the "Montezuma," also lying at the dock.
A heavy electrical storm had been in progress that morning and the barge was probably struck by lightning. The progress of the fire was rapid. However, some ten minutes elapsed before the vessel was cut loose. Although there was ample fire fighting equipment none of the chemicals suitable for fighting an oil fire seems to have been used. The barge, after she was cut loose, drifted towards Prall's Island, and by means of a tugboat was snubbed towards the shore. Drifting away, she was beached at Buckwheat Island, but again breaking loose she drifted into the plaintiffs' docks. Blazing oil, spilling over, caused the damages for which recovery was had.
The learned trial judge found that the defendant was negligent in using a wooden barge for the transportation of such large quantities of inflammable oil; in casting adrift a burning oil barge, and in failing to make any effort to extinguish or control the fire, although facilities for so doing were available; and lastly that it was liable for saving its own property at the expense of the plaintiffs.
Error is assigned because of these findings and in the refusals to nonsuit the plaintiffs or direct a verdict in favor of the defendant.
Appellant urges that the injury suffered was due to accidental means. The proofs, however, seem otherwise. It seems to us impossible that a reasonably prudent man would not have foreseen the possibility of harm to his neighbor's property in cutting adrift a burning wooden barge loaded with crude petroleum. No tug could effectively beach her because the spill of oil and the ...