Hourigan v. Nowell

In an action, under the St. of 1869, o. 152, to recover for injuries caused by the explosion of illuminating oil, which had been sold by the defendant, and did not conform to the standard fixed by the statute, it is no defence either that the defendant was ignorant that it did not so conform, or that an authorized inspector had certified that it did; and if the person injured was using such care as would have been proper had the oil conformed to that standard, the jury will be warranted in finding that she was in the exercise of due care.

Tort under the St. of 1869, e. 152,* by the administrator of the estate of Mary Hourigan, to recover for injuries sustained by her from the explosion, on July 6, 1871, of kerosene oil, which had been sold by the defendant to Albert R. White, and was below the standard fixed by the statute. At the trial in this court, before Wells, J., it appeared that the plaintiff’s intestate, while in the employ of White, was injured in the manner and at the time alleged in the declaration; that on February 17, 1871, White purchased of the defendant a barrel of kerosene oil for his own use, which he was using at the time of the accident; and that two days after the accident some oil taken from the barrel was tested by an authorized inspector, and found to be below the standard fixed by the statute. There was some other testimony of a like character, as to the inferior quality of the oil. The defendant offered evidence tending to show that the oil which he sold to White was part of ten barrels purchased by him of one Merrill, and of a larger number purchased by Merrill of Spear, Gregory & Company; that at the time of the sale by Spear, Gregory & Company to Merrill, all of the barrels so sold were inspected by a regularly authorized inspector and found to be of the required standard; that certificates thereof made by the inspector, accompanied the bills of sale of the oil to Merrill; that Merrill sold the ten barrels to the defendant under an agreement for oil of the legal standard or quality; that the defendant was ignorant of the inferior quality of the oil, if it was in fact inferior; and that he exercised reasonable care and diligence, and was guilty of no negligence in respect thereto. The defendant asked the judge to instruct the jury as follows: To sustain his action the plaintiff must prove that the injury was received in consequence of the negligence or fault of the defendant ; that at the time of the accident the plaintiff’s intestate was in the exercise of due care; that a want of due care on her part, or of those by whom she was employed, in no wise contributed to the accident and the consequent injury; that if the oil was such as the defendant could not lawfully sell, he must have had knowledge of that fact at the time of sale; that if at the time the oil was sold by the defendant to White, it had been tested by an authorized inspector, and said inspector had certified that it was of the quality required by law for illuminating purposes, and the defendant had reasonable cause to believe it had been so tested, and was of that quality, he had no further duty to perform under the statute, would be guilty of no negligence, and would not be liable in this action, notwithstanding on a day, some five months after the sale and delivery, some oil taken from the barrel originally purchased by White of the defendant was found to be below the standard fixed by law, and some person was injured by the explosion; that if at the time of the sale White, the defendant, or the person of whom he had the oil, had the certificate of an authorized inspector that the oil was of the quality prescribed by statute for illuminating purposes, the defendant had a right to rely on that certificate for his protection from any liability for damages to any person injured by the subsequent explosion of the oil, although in point of fact the quality of the oil, at the time of the sale and delivery by the defendant, was not what the statute requires for illuminating purposes ; that the defendant’s ignorance of the quality of the oil sold to White must have been a wilful ignorance; and that if he used reasonable diligence and exercised due care to ascertain the quality of the oil he sold he would not be liable.” But the judge refused so to instruct the jury, and instructed them “ that misconduct, gross carelessness, or other fault of the plaintiff’s intestate which would have been likely to produce the same results, if the oil had been of proper quality, would prevent recovery; that the plaintiff must satisfy the jury that the accident did not arise from any such fault on the part of his intestate; and that the burden was on the plaintiff to satisfy the jury that the oil used at the time of the injury was a portion of that purchased of the defendant, and was at the time of said purchase below the standard fixed by the statute.” The jury returned a verdict for the plaintiff for $2150, and the defendant alleged exceptions.