ARK. HOUSTON OIL CO. OF TEXAS V. MoGuIRE. 293 HOUSTON OIL COMPANY OF TEXAS V. MCGUIRE. • 4-2926 Opinion delivered April 17, 1933. 1. EXPLOSIVES—INJURIES FROM ACCIDENTAL EXPLOSIONS.—In an action for death of plaintiff's wife resulting from an explosion, whether defendants delivered gasoline instead of kerosene held -for the jury. 2. EvmENcE—PaBstrivirrIoN.—Where there was no eyewitness to the explosion which killed plaintiff's wife, it will be presumed that she was not guilty of contributory negligence. 3. EXPLOSIVES—BURDEN OF PROOF.,The burden was on the seller and agent, delivering gasoline instead of kerosene, to establish
'2-94 HOUSTON OIL-'Co; 'Or TMAS v: • contributory negligence of the buyer!s wife, 'fatally injured in:an explosion. 4. EVIDENCE—MATTER OF COMMON KNOWLEDGE.—In an action for death resulting from an explosion of gasoline Purchas'ed as kerosene, it was MA error to 'admit testithony relative tb' a custOm of starting fires with kerosene, as that is a matter of common. knowledge. 5. EXPLOSIVES—JURY QuEsTION.—In an action for death resulting from an .explosion of gasoline purchased as kerosene, whether • deceased was . negligent in pouring the liquid on hot embers in kindling a fire held properlY , submitted to the jury. Appeal from Calhoun Cireuit COurt;'4,.- S. Britt, JI-Edge*; 'affirmed. • " • ' • Gaughan,' SiffOrd, G'odivin Gduglian and -powell, Smead Knox, for appellant. J. S. McKnight, Walter 1). Po49 s e and PaCe Ddeis; for appellee. KIRBY, J Appellee, inihi g . own behalf and as adniin-istrafOr of the estate of his; deCeased , Wife, shed _the ,ap-• pellant oil company and it4 agent,: , JOe' McOonald, to recover damages for the death.of his wife, resulting fibril an alleged explosion of a highly inflainmable . and . exPl'o-: sive fluid consisting of a mixture of coal oil and gas6line; it being alleged that the mixthre had been bought • as i and for use as coal oil, as , appellants knew, and that, instead of delivering coal 'oil, they wrOngfUllY 'and *negligently' delivered froth the- Wrong 'container gasoline; 'Mid' sold' same to appellee as and for coal oil. It was further alleged that the appellant, Houston Oil Company, carelessly and negligently furnished to Joe MCDonald, its agent, 'for sale to the public as and for use as kerosene said gaseous fluid, which was highly inflammable and ignitable at a temperature below 140 degrees Fahrenheit, knowing it was • net 'suitable for use for heating and illuminating , purposes. That on the 4th of December,. 1931, -the deceased attempted to use said fluid as and for kerosene in gtarting the fire under a wash kettle or pot in the yard, as -Was the custom, and,.Starting to pour sothe:of said fluid on the kindling and wood .under said kettle,.,the can of fluid ignited and exploded,,scattering its :contents oyer the:per:- gon of deceased,' setting her clothing,on fire. and horribly
ARK:] HOUSTON OIL CO. OF , TEXAS v.'MoGuiRE. 295 butning her •bodY . upon : her';face, neck; arms, waist and legs to . such an extent -that she died .: from the effects thereof e on the 16th day 'Of December,- 1931, • and from which,. during the period of ,fime, that she lived after said eXplosion, she • suffe'red 'the iniost 'exeruelathigl and•Severest physical pain and•mentat anguish: • -. h. 1 : • • • ' The answer denied the Material allegation Of -the complaint *and pleaded' cOntributory negligende of the- de-'ceased as a defense. • ' - • ' '• • ' • • The court instructed the jury, amendg • one of appellants' . requeSted instructions- over its- objection, and the jfity returned. a -Nerdict 'asse§sing the damages' dt- $2:,000 for the plaintiff individually and at '$5',000 as administrator of : the' estate,' and from this judgment, this appeal iS prosecuted. ; -• e : . It is : insisted Ori appeal that the : 'court erred in'refuSing to 'direct a verdict in' fafor Of . appellantS; that: appel. lee 'S Wife• WAS guilty Of contributory negligence as a matte'r, of : la-W;' and alSO that' the 'court erred in' admitting teStimOny YelatiVe to the Gaston]: of t building fires' with kerosene or coal oil, and by modifying appellai•itS' quested instruction . No: , 2,by adding; the 'Clause thereto : if you furtherfind that in so doing she'was not exercising. 'ordinary care : for ber own Agety.!?;`' •" 1.; ' It 'a'pflears fro'in the lestimOny lb:at Noah' MeGue, *h6 lived in Calhoun'qounty 'a 'short disfAnce from Bear-den;'aeross the 'line in Ouachita County, undertook to buy 5' gallons 'of 'kerosene froth the •HoUstonr Oil ..COMpany thfongk its -agent,'4oe MeDonald • driver of the' 'tank wagon. Handing his five-galloil can• ta McDonald' to 'be filled with: kerosene, McGuire went; away;'-leaving his can -with McDonald,' and, retaining shortly, paid McD'Onald 45 cents , for the oil; being the regular standard !price .fdr kerosene.. McGuire took , the oil . home andihad used very little of it on Deceniber , 4th. He put.some'of in•a.sthve in the potato house, but was net ablecto. Say that the' con-tairier .was enipty!When.- he put:the :newly,purchased,oiliit He .also put sonie,in an oillamp,,which contained a small aMount of oil, and. he ;noticed that„thefe .waS a:peculiarity about' the way the wick . of the lamp burned when he raised the globe; the blaze would run lip high, and; he wOuld have
.1IousT0N_On, Co. OF TEXA§ MoGrUIRE. [187 to turn the wick down for about a half minute and then turn it back up gradually after putting on the globe. On December 4, while McGuire was away in the woods at work, Mrs. McGuire undertook to build a fire under the wash boiler in the back yard, and the can of oil• exploded, with disastrous results to her. The explosion was heard by persons half a mile away, who thought it was from dynamite being used on the highway ; and those who appeared on.the scene soon afterwards could not tell much about the occurrence. Mrs. Palman said the explosion threw Mrs. McGuire 10 feet away from the kettle, where she saw some of the remains of her burned clothing. McGuire went out to the kettle after he reached home and picked up the oil can about 12 to 16 feet away from the kettle and the bottom had been blown out of the can. Oil had been splashed all over a pile of oak heater wood about 20 feet from the wash pot and had burned over the pile of wood. The pot was turned over on its side, and there was nothing left around it but a few splinters and a small pile of chips underneath. • Some of the fluid had been drawn out of the can by Mr. McGuire into a bottle and carried to the woods for oiling saws. This bottle was corked with a bunch of pine needles and the oil sprinkled through on the saws prior to the explosion, and the common test of putting a small quantity on paper and then touching a lighted match to it disclosed that it was much more volatile and inflammable than kerosene, which was subjected to the same test at the same time. A flash test and a chemical test were both made by Dr. Rose, chemist, and proved that the fluid was gasoline.. The explosion itself seems to confirm this finding, as otherwise the fluid should-not have exploded in the open air on a cold day, according to Rose's statement. Dr. Rose, who made the analysis of the sample of the fluid, testified upon a question embracing the allegations of the answer and the other proof relative to the explosion that, if the fluid had been kerosene or coal oil of the grade permitted to be sold by the statute, it would not have ignited and exploded under such circumstances. It
ARK.] HOUSTON OIL CO. OF TEXAS V. MoG-umE. 297 should not have exploded unless the temperature of the kerosene had • been raised to the igniting point, which would have taken some time and heat,would have had to have been applied to the can; and that, even if the kindling surrounding the wash pot was burning, his answer would not be changed. Joe McDonald, one of the defendants, denied that he drew the fluid from the wrong faucet, either at the sta--f tion or out of his tank wagon; stated there were three faucets for delivering the products sold, oil, gasoline,- etc., and that he himself unlocked the kerosene tank when it was delivered into the tank wagon. Jelly Warren, -whose duty it was to deliver the oil from the storage tanks of the oil company at their depot, did not testify. The test of the fluid as analyzed by Dr. Rose showed it contained 96 per cent. of gasoline and ignited at a temperature of 88 degrees, when the statute (§ 5903, Craw-ford & Moses' Digest, as amended by act 77 of 1923) provides that, if the fluid ignites at a temperature of less than 140 degrees, it shall not be offered for sale for illuminating and heating purposes. The manager of the oil company and some of its chemists testified about the details of making the test for determining when petroleum oil meets the required standard for gasoline and kerosene, and also about the location and capacity of this storage tank from which sales and deliveries are made. Said that if the fluid, as , analyzed by Dr. Rose, contained 96 per cent. gasoline, it would be very dangerous to use in a potato house stove or lamps, and he doubted if it would burn in kerosene lighting equipment without causing-a fire ; said the company knew what was put into the tanks to be delivered, but that no test was made after it was put into the tank wagon of McDonald. That the company should know about the ingredients of every liquid that went into its storage tanks ; said the fluid could have been tested at every point except on delivery at the tank trucks and the wrong fluid might have been delivered. No witness who could have known testified that the fluid put into the tank wagon as coal oil came from the
:298 Houstoi■i. OTL Ca.. !OF .T:EkAS McGunit .L187 kerosene -storage tank: NO- one 'saw. MeDonald- draw. ,it from- that tank,i :and:the can could- have 'been; 'filled- with .gaSoline bY McDonald by opening , the-wrong faucet Ordt Could • have resulted : Trom • a, mistake in -leading:the gas'- ohne tank. ' • The fluid- delivered to-MeGuirewas not- kero= sene, but about 96 per cent. gasoline,:'flashed in, a test at a teniperature of' 88 :degreeS- and on. , n• cold-day in the open air exmloded, causing the 'death -Of' wife It 'certainly waS riot kerosene:of; the grado required by . the 'statute -for heating ,burpose g, and it Makes:no. differ-- ence- where the' miStake 'Was- made, since 'it was Made -by appellant or its agents,. whether in:loading the tank truck Or in filling the oil..can ! ; and the :testimony -is .sufacient to show: the delivery .of the gasoline to appellee, and•no error was committed in refusing to direct a-verdict. - . . There was no eyewitness to the cxplosion.of the gasoline and :the.burning of Mrs. •Mc0-uire :on ,account:of, and: the law presumes . that a person :injured is :free:from fault in the absence of such, eyewitness . or; evidence-:to,the coritrary: ,Dallemcmd i v: allteldt, :17.5,111.: 310, 48L. R.: . A. 753, 67 Am. St. Rep:. 214, 51.,1\1.X.„ ;645i; $algers.N:Ronroe; 104 Iowa 74,73 N. W..606; Atchiso i . ,,T. F .f .587I- an. 208, 49 Vac..:83 Detroit, L. ,66 R-C . o., 64 Mich. 93, 8, Am : , St. Rep.:804, 31 N. W. 147:; . 1 exci.3 Oo, 103'-cJ. S. 353, 16 S . . :Ct, 1104,, 41W. 186,; Chicago . 4 3 .1 ( 2 „.R:. CO.. v. .0underson, 174111.495, 51 : - . . . . 'The burden was-upon the.appellants to :estab,lish . contributory.riegligence . up on. the , part of.. deceased, :and. itbas failed to , discharge;,the,:burden...:1ri the : case- of Ellis.-=T: ,Co:,.,133 Iowa, 11; :11 , 10 N;:: W.: 20, . a case wherein the-facts are similar: to the case- at bar,.it is .Said, with Teference to contributory negligence.: . .• said, , .hbwever,--that -there was: net suffiCient showing . .of abSence • Of contributory negligence , on liatt of . the deceased: •To 'this:Contention . it may , first be said that there :is no 1ivin witries s : -of the 'exploSion or of the circumstances under Which • the unforthriate . girl-met her death, and the administrator of her estatels ArthiS aetion entitled to the presumption. Of due care on her : part arising from the coMmon -instinct of7self-preservation• which
'ARK.] S HOUSt i ON OIf 'CO. o`,4 TEXAS 1): MCGUIRE. .299 n . at _ u . rally . leads a normal person to avoid . danger: ? ,' •• Cit- mg cases. • • • 'ThwaS further said there :• •:.`•f:In- tbe -absence . of .any•shOwing or suggestion that she Nvds. net in any5in'anter-responsible. : for -the.:character of the content§ of .the ,oil Can, or that, any reaSon. existed to excite her suspicion that the can was not filled: .-Nvith standard'. kerosene, --there certainly.`no ,-showingon Which. we can -say_ as' a: Matter Tof law . ..that she :was. guilty of ., ContributorY . negligence.1' . . :The -use) nf,,, kerosene :in kindling: -fires :is too: common .and .knownJor u§ to• say: that .a,- :person •using - reasonable. care ,-may' not employ :that agency; ...without being . ;ebni-geable . with negligence," _ i s.,•-. ;;.; ;I No . error was, committed in admitting testimony rel-ati,Te to \the custoin . of. making . fires with kerosene,. that . being such a matter of common knowledge that the court could havc taken . it into account •without any such: testi-. mony in any eYent. W aters-Pierce Pet c Q . . v. Deselms; 212 U. 8: 157, 29 S. Ct. 270; KentuCkY InCtependent Co. V. Schnitzler, 208 Ky. 507, 271 S. W. 570, 39 A. L. R. 979. - . Neither did the , court err in modifying defendants' requested . inStriietion . NO: 2by 'adding- the - word§ complained of, making it read:" "YoU • dre inStructed that, if you beliele from the testimony in this case that Mary McGuire had, built:a ; fire under , and around a wash pot in her yard,-Which, 'ffre'ad'ai'ed' . deWn'fintil only some coals or..hot . ernbers remained. .surrounding the T poti and-that -she'. undertOdk 'to' rekindle . the"fire, -IptacineSOme kindling wbod' . .finder and ardund'the . : 134,• ., and , -"tliat in thit-thig. the .flre *she .fOok-the can, of. linid•in ControYersY' and poure d ' the contents Ihereof _on. said 5kindling wood, coalsiand hot -embers;:.and that•:while.doing' . .so the,,coals and 'kindling suddenly burSt inte flameS:- which ignited- the fluid: in : the 6an, resulting'in the -injnrY ' aila-deatli Complained of,. and if.you f t i irther -fincr. that .d6iitg :she was . , not . . exercismg... orcimary., care for,,her . :02(717, safety, then you sare told that the.said Mary McGuire was-guilty of:contributory- nOgligende; and: plaintiffs - cdimot 'recover, and your verdict should be for defendants . " •
The circumstances ,of this case are unlike those in the case of Magnolia Pet. Co. v. Bell, 186 Ark. 723, 55 8. W. (2d) 782, and the injured woman could not be charged with being guilty of contributory negligence as a matter of law, and no error was committed in modifying the instruction thy the addition to it leaving , the question to the jury. Upon the whole case, the doctrine found in Pierce-Oil Corporation v. Taylor, 147 Ark. 100, 227 S. W. 420, and Pierce Oil Corp. v. Taylor, 264 Fed. 829, justifies the finding that the appellants sold the dangerous fluid as and for kerosene or coal oil because of which, in the customary use of it, the explosion occurred causing the damage, notwithstanding that some of the facts are proved partially by circumstantial evidence and legitimate inferences. See also Waters-Pierce Pet. Co. v. Deselms, supra. We find no prejudicial error in the record, and the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.