ARK.] SINCLAIR REFINING COMPANY V: GRAY. 175
SINCLAIR REFINING COMPANY V. GRAY. 4-3913
Opinion delivered Jmie 24, 1935. 1. E XPLOSIVES—CARE REQUIRED., —A company owning gasoline tanks and equipment held not an insurer, but bound to exercise care and diligence to avoid injury to the health and property of: others by the escape of gas. 2. NEGLIGEN CE—DEGREE OF CARE.—Care and diligence vary according to the exigenCies which require vigilance and attention; a higher degree of care being required in dealiag with'a dangerous agency than in the ordinary affairs of life or business which involve lit-. tle or no risk. • 3. E'XPLOSIVES—NEGLIGENCE—JURY QUESTION.—Where a 4-year . old boy raised the top of a pipe connected with a gasoline tank 'and was injured by an explosion when he struck a match, whether the owner of the tank was negligent in leaving the pipe unlocked held for the jury. 4. EXPLOSIVES—CONTRIBUTORY NEGLIGE NCE.—A 4-year old boy who raised the top of a pipe connected with a gasoline tank and was injured in an explosion when he struck a match held too young to be guilty of contributory negligence. 5. ExPLosIvEs—TEST OF LIABILITY.—ID a 'suit to recover for injury to a boy by a• gasoline explosion, an instruction making the test of defendant's liability, the oWnership of the tank which exploded, rather than the ownership :of, .the gasoline contained in the tank, held proper, where the evidence showed that the pipe leading tp the tank had been left insecurely capped. Appeal from Conway Circuit Court ; A.. B. Priddy, Judge ; affirmed. Malcolm W. Gannaway, for appellant: . • Edward Gordon, for appellees. MEHAFFY, J ' This suit was begun in the Conway Circuit Court by . Elmer Gray, Jr., by his guardian and next friend, Mrs. Princess C. Gray, and Mrs. Princess C. Gray against the appellant, .Sinclair Refining Company, to recover damages . for . injury received by Elmer Gray,
176 SINCLAIR REFINING COMPANY . 21.' GRAY. [191 Jr., four years old, caused by an explosion at the gasoline tank belonging to appellant. The appellant had leased from Prince Olergett certain land ]ocated on 'the north side of highway 64, west of Morrilton, Arkansas, and had placed on said land certain underground gasoline tanks and other equipment for tbe retailing of gasoline and servicing of automobiles. Prince Clergett was placed in charge as agent of appellant and operated the station using the tank and equipment until January 9, 1934, when the lease agreement and other agreements were canceled. The appellant however did not remove its tanks and equipment, but continued to use them through its agents. One of the agents of appellant was' J. M. Merrick. Merrick testified that he was appellant's agent at the time . the 'appellee, Ebner Gray, Jr., was injured; that he sokl the gasoline to Bill Russell.. The witness also testified that he did not think the contract was actually canceled on January 9th because the cancellation agreement had to be sent to the' office and forwarded back to Mr. Benbrook, 'and in his judgment it was later than the 9th before it could be sent for cancellation. Frank Hawkins testified that he was a truck driver for Merrick, agent of the appellant, engaged' in the delivery of gasoline and other oil prOducts ; that he delivered the gasoline t6 Russelb . but at the time he delivered it be thought it .was for Clergett. .Bill Russell testified that he was present when Frank Hawkins delivered the gasoline . to Clergett's filling station ; saw Hawkins 'Open the lock on the tank; that 'he used the axle of a Ford car to pry it.open ;' saw . Hawkins put the gasoline in the tank and try to lock it, but Hawkins said the lOck . 'would not hold, and told witness that be would have to get another lock, and -that he, Hawkins, would bring one next time he came. After the gasoline had been delivered into the tank and the lock had been -broken off; on January 12, 1934, Elmer. Gray, Jr., While visiting his grandmother, who lived on the property leased by appellant where said tanks were located, was attracted to the fill pipe used to fill one of the underground tanks, and the child 'raised
ARK.] SINCLAIR REFINING COMPANY V. GRAY. 177 the top or flap of the pipe and struck a mateh, causing an explosion:which seriously injured the child: • . Quite a number of witnesses testified, but we deem it unnecessary to set out their testimony because the .undis.- puted facts show that the apPellant owned, and controlled the tank, pipe and equipment... The undisputed proof also sbows that , the lock:had been. broken -from the pipe same-thne in Deeember.• .. There• is • no dispute -about the faet that the child was injured b3i.'the explosion, which would not have oceurred hut !for the broken •lock. . There:is no dispute about the extent of. :the child's injury.. ' There wAs- a jnrY trial; and a'verdict . and jndgment for . appellee fot • 'The • case 18 here on . app . eaL• 'Appeilant' . Stateg ' that its: theory iS that the 'record Shows"conclUsiiTely that; it had no control or right of con.- frol 'over 'the property "where tho hq was injnred; that the gaSoline which cauSed the injury did not 'belong tO but belonged' to' Bill Russell ' ; that it had no 'contrel over said . gasoline ;' and 'that . attractive nuisance' doctrine haS nb aPPlication. • • • ' ' • Appellant . 'cite§ and relies 'on Con,§ta . ntin flefinii COmpany v. Martio;155 • Ark: 193, 244 s'. • W. 37'. In that case the 'Constantin 'Refining Company had bteught in au 'There was' no eVidence of' any eseape 'of gas 'at the . Month of' the well . Or'anyWhere neat there,. but a . few daYs after the- Well *as . capped; it was found that there WAS' an eseape . cif gas. through 'fisSures in' the earth tO 'the surface, and' at' A pOint '950' feet' distant •from'the Well there was a crater formed in the-bed of a sinali strewn of water. There was no evidence that the escape of the gas Vas . cauSed by 'the' dapping of defendant's well. The crater was on another 'tract of •land than- tha.t . on which the well was located,. A' tract 'in whieh the • defendant had no interest, -and over whielr 'it • had no right 'to exereise 'control: WaS . on a : tract: Of : fenced and cultivated 'land, known as . Painell• -field: -A . ; railroad track i Was -between defendant's tract of land and'. the Parnell tract,.'an . d : th . e track was on a dump . ot embankment .: 12*feet high: The facts in that case are wholly different from the case at bar, and the' court' said in 'that ease that it Conld.diScover no act 'of negligence: There • waS.'itoneklieeliee
178 SINCLAIR REFINING COMPANi" V. GRAY. [191 ing in the.well, and it conducted its operations in accordance with the usual methods. There was no negligence in capPing the well ; the defendant not only had a right to do that, but the law compelled it to do so. There was no negligence in the formation of the crater, for that resulted by reason of the natural pressure of oil and gas through the fissures in the earth. In that case Judge HART wrote a . strong dissenting opinion holding that the Constantin Company was liable. . The next case-referred to and relied on by appellant is St. Louis, Iron Mountain & Southern Ry. Co. v. Wag-goner, 112 Ark. 593, 166 S. W. 948, 52 L. R. A. (N. S.) 181. In that case the C. J. Lincoln Company had shipped over the line of railway an empty, alcohol barrel. The barrel was received by the railroad company at Little Rock , and shipped over its line to Ward. When it reached Ward, it was unloaded and set out at the end of the platform. There was nothing to call . the agent's attention to the barrel as having .explosives in it or as being dangerous. Waggoner had gone to the station to take , the :train to Judsonia, and his wife and two boys accompanied him to the station.. While he was in the waiting room, the boys were playing on the station platform around the empty barrel. The barrel had R half-inch cork stopper in a hole in the end. The stopper was pulled out, .and one of the boys stuck a match, to it, and . there was an explosion. Waggoner was- ten years -old, and the . court said it could not say as a matter of law that he was guilty of contributory negligence. . The .court stated the yule to be as follows : , "Where the owner permits to remain unguarded on his premises, something dangerous which is attractive to children, and from which an. injury may reasonably. be anticipated, he may be liable." - . In the instant case the undisputed proof shows that the owner of the tank and pipes permitted them to remain OR the premises where they were located unguarded, and with. the lock broken off so that the cap was not securely fastened. Appellant next cites Catlett v. Ralway Company, 57 Ark. 461, 21 S. W. 1062.. There was no proof of negli-
ARK.] SINCLAIR REFINING COMPANY V. GRAY. 179 gence at all, and no proof of any wrongful conduct on the part of the railway company. Catlett, a boy of eleven years of age, althongh he had been repeatedly warned not to do so, climbed 'on a moving train and was injured. The evidence shows that no one -in charge of the train saw. Catlett attempt té' get on; or knew . anything , of the accident. at the time. Of course the court held that 'there was no evidence of negligence. 'In the instant-case there is no dispute about . the lock being broken, and tbe pipe being left in an unsafe con dition.. It is next argued:by the appellant that Hawkins was in the employ- of Merrick and not . .in the employ . of ap pellant. There is . no dispute 'about Merrick being the agent of the appellant, And Hawkins was one of his truck drivers. But, if 'he had been a stranger, the . appellant would' be• liable because, if 'it left the' equipment, which was to be used to store and deliver gasoline in an unsafe condition, then any one could put gasoline -in the pipes; and if a stranger did, and injury resulted, the appellant would be liable because it 'permitted its equipment to be in such condition that it could' be used by any one, andthe only purpose of its' use -Was to store a . dangerous agency. The appellant was not an insurer, but it was bound to exercise such care and diligence as to avoid injury to the health and property _of others by, the escape of gas. Tbe care and diligence should alwayS vary according to the exigencies which require vigilance and attention. A higher degree of, care and vigilance is , -required in dealing with a dangerou s agency than in the Ordinary affairs of 'life or bnsiness which- involves little or no risk.' 28 C J 590-591. See NcishUille Lbr. Co. v. Busbee; 100 Ark. 76, 139 8. W. 301. . . . - In the instant case, if the evidence showed that . the appellant had used reasonable'care, it would not he liable, but whether it did or did -not -was a question for the jury, which was properly sibmitted to it under'correct instructions. . , In another case.we said : "While it is true that' the deceased could not-have been killed by. the escaping.gas if he had not unscrewed the risef, still -he had the .right
180 [191 to remove this apparently disconnected and dead gas pipe from his premises." Pulaski Gas Light Company v . McClintock, 97 Ark. 576,.134. S: W. 1189. It is true in -this case that the child would not have been injured if he had not struck the match, but, as he is too young to be guilty of contributory negligence, the striking of the match did not bar his recovery. :Moreover, but for the negligence of appellant in leaving the lock .broken and the pipe :unguarde , c1, the injury could not have occurred. Appellant's specific objection to the instructions is that they made the test of liability the ownership and control of the gasoline tank,, instead of making- the test ot liability the ownership or control of the gasoline which was in the .tank. Tbe. gasoline . would, not have, caused the injury,, but for , the negligence with reference to the pipe. The gasoline would have been . perfectly harmless but, for appellant's negligence: Wethink tbe trial court was Corr-rect in holding that the sole:test was the ownership and control of the tank and equipment. .,The jury were fully and fairly inStructed, and it would serve no useful purpose to discuss the instructions separately. We find no error,. and the judgment is affirmed.
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