Opinion
No. 4623.
Argued December 3, 1957.
Decided December 31, 1957.
1. A substance is inflammable when it is combustible or capable of being easily set on fire.
2. A conviction under RSA 263:78 for failing to bring a motor vehicle used for the transportation of No. 2 fuel oil in a cargo tank to a stop before driving over a grade crossing was not required to be set aside because the statute did not establish a standard for determining the inflammability of No. 2 fuel oil where the State Board of Fire Control had classified such liquid as inflammable under the authority delegated to it by statute (RSA 153:4, 5, 14) and such classification was not unreasonable as a matter of law on the evidence.
COMPLAINT, charging the defendant with violating RSA 263:78, which provides "INFLAMMABLE LIQUIDS. Every motor vehicle used for the transportation of inflammable liquids in cargo tanks whether loaded or empty, shall, upon approaching any railroad grade crossing, be brought to a full stop not more than fifty feet and not less than ten feet from the nearest rail of such grade crossing, and shall not proceed until due caution has been taken to ascertain that the course is clear."
Trial by the Court (Leahy, J.) who found the defendant guilty.
Louis C. Wyman, Attorney General and David C. Engel, Law Assistant (Mr. Engel orally), for the State.
Malcolm H. Thompson (by brief and orally), for the defendant.
The sole question transferred here is whether, as a matter of law, No. 2 fuel oil is an inflammable liquid within the purview of RSA 263:78. This statute does not define or establish a standard to determine the inflammability or "flash point" of No. 2 fuel oil. Under the provisions of RSA 153:4, 5, the State Board of Fire Control is vested with certain duties and responsibilities in enforcing all laws of the state relative to protecting property and persons from fire hazards. Among other duties the Board "shall be responsible for supervising and enforcing all laws of the state relative to . . . . (g) the transportation, storage and physical handling of flammable liquids which such board believes dangerous to the lives or safety of the citizens of the state." S. 4. The Board is further authorized (RSA 153:5) "to adopt and promulgate reasonable standard rules and regulations to accomplish the intent and purposes of this chapter . . . ." See also., RSA 153:14.
Numerous statutes in other jurisdictions have been cited by counsel which set up a definition for flammable liquids, many or all of which would exclude No. 2 fuel oil from the flammable classification. Some of these are concerned with sale, use or storage as distinguished from transportation. These statutes are of little aid here since it is not known what conditions or reasons prompted other legislative bodies to establish a specific classification for inflammable liquids.
A substance is inflammable when it is "Capable of being easily set on fire; combustible . . . ." Webster's New Int. Dictionary (2d ed.) 1275.
Counsel do not challenge the right of the State Board of Fire Control to "promulgate reasonable standard rules and regulations" but it is argued here that the rule classifying No. 2 fuel oil as inflammable is unreasonable. Since the evidence did not compel a finding of its unreasonableness (Richardson v. Beattie, 98 N.H. 71, 75; Meredith v. State, 94 N.H. 123) by force of the regulation. No. 2 fuel oil is as a matter of law inflammable. See Ferretti v. Jackson, 88 N.H. 296, 298.
Remanded.
BLANDIN, J., was absent; the others concurred.