ARK.) GOODE V. PIERCE OIL CORPORATION. 863 GOODE V. PIERCE OIL CORPORATION. Opinion delivered October 11, 1926. 1. EXPLOSIVES—JURY QUESTION.—Whether, under •the evidence, defendant was guilty of negligence in selling , a mixture of gasoline and keroiene ,fon the latter held for the jury. _ • 2. EVIDENCE—JUDICIAL KNONVLEDCE.—It is matter of common knowl-. Age that refined kerosene ,is used to furnish light, and as fuel for oil •stoves, and , in lighting fires. 3. EXPLOSIVES—CONTRIBUTORY NEGLIGENCE.—Where plaintiff held kerosene can about ohe arid a ball ihches from the top of a stove'containing'fire and iSou'red a liquid supposed to be kerosene ' but which contained gasoline also, and an explosion followed,- injuring her, held,, in an action, for .negligence in selling the mixture, that plaintiff was guilty of contributory negligence, as matter , of law. , Appeal' from Mississippi Circuit • Court, Osceola District; W. W. Baindy, Judge; affirmed. -. STATEMENT OF FACTS. „ Rachael Goode instituted this action against the Pierce Oil. CorPoration and. another- to recover damages for injuries received lay her, alleged , to have been caused by the negligence of the defendantS. It was _claimed that the Pierce Oil , Corporation negligently sold to H. B. Smith, a retail grocer, a mixture_ of kerosene and gasoline for refined 'coal oil. According to* the evidence .of the plaintiff, she was injured on January 19, 1924. She had some green wood in her stove, and it was burning a little bit. She thought she would increase the flame by .pouring coal oil on it. She had a large can, which would contain five or ten gallOns of oil, and which had about a gallon and a half of ell in it. There•w'as a small blaze in the. wood, and she wanted to increase it. She held- the• can about an inch and a: half from the top ,of the stove and began to pour the oil on the blaze. When she. had poured out about a tablespoonful of oil," there . was an explosion, and the flame ran out from the toP of the can and -burned her hand. It seemed to be an explosion.' At -any rate, the
864 GOODE. v. PIERCE OIL CORI DORATION. [171 oil in the can caught on fire, ran out of the spout, and burned her hand. She had purchased the oil from H. B. Smith for kerosene, and he, in turn, had purchased it from the Pierce Oil Corporation for kerosene. Some of the oil remained in the can after the explosion. It was examined by 'a chemist, and found to be a mixture of gasoline .and kerosene. The United States specifications for kerosene provided that it must not flash at less than 140 degrees Fahrenheit. The oil in question flashed at 60 degrees F. • • The circuit court directed a verdict in favor .of the defendants, on the ground that the plaintiff was guilty of contributory negligence. From a judgment rendered in favor of the defendants, the plaintiff has duly Prosecuted an appeal to this court. . J. T. Coston, for appellant. Malcolm W. Gannaway and A. Carlyle Gannaway, for appellee. HART, J., (after stating the facts). Plaintiff 's cause of action is based upon the negligence of the 'defendants in selling to her 'what she had a right to assume ,was standard kerosene, when the oil purchased was a' mixture of kerosene and gasoline. - The evidence was sufficient to allow the question of negligence of the defendants to be submitted to the Jury. It tended to show that the oil, which wa g purchase& by the plaintiff for kerosene, was a mixture of kerosene and . gasoline, which flashed at 60 degrees Fahrenheit. According -to the United States specifications,-kerosene should not- flash at a point lower than 140 degrees F. It is a matter of common knowledge that 'refined kerOsene is used to furnish light and as fuel for . oil stoves. It is also commonly used in kindling fires. ' Hence, in the' absence of contributory negligence by the plaintiff, the . evidence for the plaintiff was sufficient to allow a recovery by her. 11 R. C. L. 671 and 672, and cases cited, and 25 C. J. 202, and cases cited. - We are of the opinion, however, that, under the plaintiff's own testimony, we are compelled to say, as
ARK.] GOODE V. PIERCE OIL CORPORATION. 865 . - a matter of law, she was guilty of contributory neg-_ ligence.. It is true that she purchased the oil in clues-tion . for standard:kerosene, but she poured the, oil in,the stove,, knowing that there was a . small flame in. the fire burning there.: , She, held the can only about one and a half inches from the: top of. the stove, and knew that there was between a gallon and a gallon and. a half of oil in it. While the evidence for the plaintiff tends to show that standard kerosene is not exploded by. being poured onto a flame, still the undisputed evidence shows that it would explode if 'poured 'Upon Hire deals. The plaintiff testified that there was . only a small •flame to- the :.webd in the 'stove, and she 'might haVe expected that;'iii iieuring the oii on it, she WoUld extinguish the , aande arid , thereby cause the kerosene to explode. It will .. .be remembered that she' ohlY held . the 'can abotit One . and a half inches from the„top: of :the stove. - The deCided ,caSes and the authorities above' ;cited hold. that it is net negligence, as a matter of law, to use kerosene in kindling a new fire. The .reason is that, in such a case, there is no possibility of causing an explosion by ,pouring kerosene on the wood. The wooff is not ignited until afterAheperson has ceased to pour:the'kerosene on it. A flame is then applied to the Wood-, and by no ' Ott of Mean's. Could -thiS have , caused . an explosion of the oil , iii the can.. The case is quite different when the oil is being poured from the can onto live coals or even a small flame. As we have already seen, the pouring of .the kerosene onto the small flame might extinguish it and thereby cause the coal-oil which came in contact with the burning wood. to explode. In such a case, the better reasoning is to hold that the party using the kerosene is guilty of such contributory negligence as to bar him from recovery. Morrison v. Lee (N. p.), 113 N. W. 1025; Du Bois v.. Lutloner (Iowa), 126 N. W. 147 ; Riggs v. Standard Oil Co., 130 Fed. 199 ; and McLawson v. Paragon Refining
866 [171 Co., 198 Mich. 222, 164 N. W. 668. Other authorities bearing on the question will be found in the volumes; of Ruling%Case Law and Corpus Juris referred to above. It follows that the trial court was right in directing a verdict for the defendants, and the judgment. will therefore be affirmed.
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