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U.S. Supreme Court

The Nitro-Glycerine Case, 82 U.S. 15 Wall. 524 524 (1872)

The Nitro-Glycerine Case

82 U.S. (15 Wall.) 524


1. In 1866, the defendants, who were expressmen engaged in carrying packages between New York and California by way of the Isthmus of Panama, received at New York a box containing nitro-glycerine to be carried to California. There was nothing in the appearance of the box tending to excite any suspicion of the character of its contents. It was received and carried in the usual course of business, no information being asked or given as to its contents. On arriving at San Francisco, California, its contents were leaking and resembled sweet oil. The box was then taken for examination, as was the custom with the defendants when any box carried by them appeared to be damaged, to the premises occupied by them, which were leased from the plaintiff. Whilst a servant of the defendants, by their direction, was attempting to open the box, the nitro-glycerine exploded, injuring the premises occupied by them and other premises leased by the plaintiff to, and occupied by, other parties. The defendants had no knowledge of, and no reason to suspect, the dangerous character of the contents. They repaired the injuries to the premises occupied by them. Held that they were not liable for the damage caused by the accident to the premises occupied by other parties.

2. Common carriers are not chargeable, in cases free from suspicion, with notice of the contents of packages carried by them, nor are they authorized in such cases to require information as to the contents of the packages offered as a condition of carrying them.

3. Where there is nothing to excite the suspicion of a common carrier as to the contents of a package carried by him, it is not negligence on his part to introduce the package, when appearing to be damaged, into his place of business for examination, and to handle it in the same manner as other packages of similar outward appearance are usually introduced for examination and handled.

4. The measure of care against accidents which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.

Parrot brought an action in the court below against certain defendants who composed the well known firm of Wells, Fargo & Co., express carriers, to recover damages for injuries to certain large buildings owned by him in the City of San Francisco caused in April, 1866, by the explosion of chanroblesvirtualawlibrary

Page 82 U. S. 525

nitro-glycerine whilst in charge of the said defendants. The action was originally begun in the state court of California, and was thence removed, on motion of the defendants, to the circuit court of the United States, where it was tried by the court without the intervention of a jury, by stipulation of the parties, under the recent act of Congress.

The complaint contained four counts. The first was for technical waste by the landlord against his tenant from year to year, based on a statute of California. The waste was charged to have resulted from negligently introducing an explosive substance &c., and treble damages were claimed.

The other counts were for injuries to premises demised to the defendants, and to the reversionary interest of the plaintiff in premises demised to other tenants, caused by the defendants, by themselves and their servants carelessly, negligently, and improvidently introducing upon the premises occupied by them a box containing the explosive substance, and so carelessly, negligently, and unskillfully examining, handling, moving, and striking the box as to produce the explosion of the substance, causing the injuries complained of.

The answer joined issue on all the material allegations of the complaint; also set up a lease under which defendants occupied, and a right to carry on the business of expressmen in the demised premises; and also averred a repair of the demised premises, before suit brought, to the satisfaction of the plaintiff and with his approbation.

The facts of the case as found by the court were substantially these:

The plaintiff, being owner of the buildings injured, let, in November, 1855, a portion of them -- the basement and first floors with the vaults and banking fixtures therein, together with a brick warehouse in the rear -- to the defendants for a term of two years from the first of January, 1856. The lease contained covenants that the lessees would not receive in the demised premises, either for their own account or on storage, or allow any person to place therein "gunpowder, alcohol, or any other articles dangerous from their combustibility;" chanroblesvirtualawlibrary

Page 82 U. S. 526

that they would, during the term of the lease, "occupy the premises solely for the business of their calling," which was that of bankers and expressmen, and at the expiration of their term would

"quit and surrender the said demised premises with all the fixtures therein contained in as good condition as the reasonable use and wear thereof would permit, damages by the elements excepted."

The rent stipulated was $12,000 a year, payable in monthly installments of $1,000 each month in advance. The lease was on two occasions subsequently renewed on the same terms, once for two years from January, 1858, and again for two years from January, 1860. After the expiration of the latter term, the premises were held over from year to year with the assent of the plaintiff, though without any special agreement on his part, and were thus held on the 16th of April, 1866, when the injuries complained of were caused, the defendants paying rent in accordance with the terms of the original lease. The remaining portions of the buildings -- being mostly portions above the part occupied by Wells, Fargo & Co. -- were at the time let to other tenants.

The premises occupied by the defendants were used by them for their business, as stipulated in the lease. They were engaged in the business of public express carriers in the states and territories of the Pacific Coast, and between New York and San Francisco by way of the Isthmus of Panama, using on the latter route the steamships of the Pacific Mail Steamship Company, running between New York and Aspinwall on the Atlantic side, and Panama and San Francisco on the Pacific side, to convey their express matter, and transporting the same across the isthmus by the Panama railroad. In 1866 the steamers left New York on the 1st, 11th, and 21st days of each month, and it was a regulation of the company that no express freight should be received at the wharf in New York on those days. On the afternoon of March 11, 1866, and after the steamer sailing that day had left for Aspinwall, a man brought to the wharf from which the steamer had taken her departure a case to be carried to California, and asked an employee of the defendants chanroblesvirtualawlibrary

Page 82 U. S. 527

to receive it for that purpose. The employee informed him that it was too late to receive freight on that day, but that he could leave the case at his own risk and come the next day and get a receipt. He thereupon placed the case on the dock opposite the freight office of the company. The employee noticed at the time that the case had not been marked or strapped, as required by the regulations of the company, and called the man'she employee noticed at the time that the case had not been marked or strapped, as required by the regulations of the company, and called the man'she employee noticed at the time that the case had not been marked or strapped, as required by the regulations of the company, and called the man's attention to the omission; whereupon he requested the employee to mark and strap the case at his expense. The case was accordingly strapped as required, and was marked with the proper address of the person for whom it was intended in California. Two days afterwards, the man returned and obtained a receipt from the proper clerk of the company. The case remained on the dock where deposited till the next steamer left New York, when it was taken with other freight. At the time the case was presented, it was clean and appeared to be in perfect condition. There was nothing in its appearance calculated to awaken any suspicion as to its contents. It required strapping and marking, and when this was done it was in proper condition for shipment. The case was an ordinary wooden box about two and a half feet square, and weighed three hundred and twenty-nine pounds. Nothing was said upon its delivery, or upon taking the receipt afterwards, or at any other time, about the contents of the case to the defendants, or to any of their employees, nor were any questions subsequently asked by anyone respecting the contents. The case was shipped for California with a large quantity of other express freight, amounting to several thousand cases, on the steamer that left New York on the 21st of March, 1866. It was carried to Aspinwall, thence transported over the Panama railroad, reshipped on a steamer at Panama, and arrived in San Francisco on the 13th or 14th of April. On the afternoon of the 14th it was taken from the steamer and placed upon the wharf, when it was discovered that the contents were leaking. These contents had the appearance of sweet oil. Another box of similar size had been stained by the contents leaking, and appeared to chanroblesvirtualawlibrary

Page 82 U. S. 528

be damaged. On the 16th of April, in accordance with the regular and ordinary course of the defendants' business when express freight is found to be damaged, the two boxes were taken to the defendants' building, the premises in question, for examination. The agent of the steamship company was requested to send a representative to be present at the examination so that it might be determined, if possible, by inspection, where the responsibility rested between the two companies for the injury to the case. A representative of the company accordingly attended, and in his presence, and in the presence of an agent of the defendants, and of other persons, an employee of the defendants, by their direction, with a mallet and chisel, proceeded to open the case, and while thus engaged the substance contained in it exploded, instantly killing all the parties present, and causing the destruction of a large amount of property, and the injuries to the buildings occupied by the defendants, for which the present action was brought. Upon subsequent examination, it was ascertained that the substance contained in the case was nitro-glycerine or glonoin oil. The other box contained silverware.

Notro-glycerine, according to the account given of it in the record, in its pure condition, is a nearly colorless substance, but when impure, it has the color and consistency of sweet oil. It is a liquid which, under some conditions, explodes with great violence, its explosion being produced by percussion and concussion, and by a high degree of pressure, but not by contact with fire. If a flame be applied it will burn slowly without exploding, and if the flame be withdrawn, it will cease to burn. It will also explode upon being subjected to a heat of 360 degrees Fahrenheit, and in explosion combustion takes place. When kept in closed vessels, it gradually decomposes, and in decomposing disengages gases, the pressure alone of which may cause an explosion. In this case. the nitro-glycerine in some of the cans in the case had become partially decomposed, generating gases and producing pressure within the cans and a tendency to explode. In this condition of decomposition, the percussion or concussion chanroblesvirtualawlibrary

Page 82 U. S. 529

caused by opening the box with the mallet and chisel, operating in connection with the internal pressure, produced the explosion.

The discovery of this substance was first announced at Paris, in 1847, but, prior to 1864, experiments with it were confined almost entirely to the laboratory of the chemist. It was manufactured only in small quantities for scientific purposes. In that year, a gentleman in Europe by the name of Noble suggested that it might be used for blasting purposes, and in the following year he made experiments with it, demonstrating its extraordinary power, and succeeded in introducing it to a limited extent into some of the European quarries and mines. An account of its properties was also published during that year in England and in a scientific periodical in New York. In 1866, a few weeks before the explosion which has given rise to this case, a shipment of the article from Noble arrived in San Francisco. Efforts were made by the consignees to draw public attention to it for blasting purposes when the explosion at the office of the defendants took place. A second shipment from the same person to the same consignees, made from Hamburg by the steamer European exploded on the 8th of April, 1866, at Aspinwall, destroying the steamer and other property. This was eight days before the explosion at the defendant's express office, and the news had not then reached San Francisco. Notwithstanding the efforts of Noble to bring his nitro-glycerine into notice in 1865, and the two shipments mentioned made by him early in 1866, at the time the case in question was shipped at New York and received at San Francisco, nitro-glycerine was not generally known to the public as an article of commerce. The explosions at Aspinwall and San Francisco, and subsequent ones occurring at Sidney and in England attracted the attention of scientific men to the subject, and led to more careful investigation and experiment and to general knowledge of its properties.

The court found that neither the defendants, nor any of chanroblesvirtualawlibrary

Page 82 U. S. 530

the employees of the defendants, or of the Pacific Mail Steamship Company who had anything to do with the package in question, nor the managing agent of the defendants on the Pacific coast, nor any of those killed by the explosion, knew the contents of the case in question or had any means of such knowledge or had any reason to suspect its dangerous character, and that they did not know anything about nitroglycerine or glonoin oil, or that it was dangerous; that the case had the appearance of other cases usually received in the ordinary course of the defendants' business, and was received and handled by their employees in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business, when ignorant of their contents, and with similar means of knowledge as that possessed by the defendants and their employees in this instance, and that there was no negligence on the part of the defendants in receiving the case or in their failure to ascertain the dangerous character of the contents, and in view of the condition of their knowledge, of the want of means of knowledge, and the absence of any reasonable ground of suspicion, there was no negligence in the handling of the case at the time of the explosion.

The defendants either repaired or paid for the repairs (to the amount of about $6,000) of the premises occupied by themselves, except a portion of certain repairs made by the plaintiff, which were necessarily made in connection with repairs made to those portions of the premises occupied by the other tenants of the plaintiff, and which the defendants omitted to pay for by mistake.

For the amount thus omitted to be paid, and interest, the court gave judgment for the plaintiff, but held that the defendants were not liable for any damage caused by the explosion to other portions of the buildings of the plaintiff leased to and occupied by other tenants.

To review this judgment the plaintiff sued out a writ of error from this Court. chanroblesvirtualawlibrary

Page 82 U. S. 534

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