Opinion
No. 30555.
May 15, 1933. Suggestion of Error Overruled July 17, 1933.
1. EXPLOSIVES.
Evidence of filling station owner's negligence, where several hours after it filled automobile tank automobile owner parked automobile on slope and gasoline leaked out nozzle and caught fire and tank exploded, injuring child, held insufficient to raise jury question.
2. NEGLIGENCE.
"Ordinary care" of reasonably prudent person does not demand that person should provide for or anticipate unusual, improbable, or extraordinary occurrence.
3. NEGLIGENCE.
Probability arises in law of negligence when viewed from standpoint of judgment of reasonably prudent man, as reasonable thing to be expected, and remote possibilities do not constitute "negligence."
4. EVIDENCE.
Decrees and judgments may not be based on conjecture.
5. EXPLOSIVES.
Ordinance making it misdemeanor to permit automobile to stand on street with gasoline dripping did not create liability, where automobilist had no notice of any defect in gasoline tank, from nozzle of which gasoline leaked onto street, and where no act or omission of his brought about explosion which injured child.
6. EXPLOSIVES.
Automobilist held not liable where, several hours after gasoline tank was filled, he parked car on slope in street, gasoline leaked out nozzle and caught fire, and tank exploded and injured child.
APPEAL from Circuit Court of Adams County.
Engle Laub and Whittington Brown, all of Natchez, for appellants.
It was a question for the jury to say, first, from the evidence in the case, if they believed that one of the co-defendants had negligently over-filled the gas tank or had negligently replaced the cap upon the tank so that leaking resulted; secondly, whether a reasonably prudent person, over-filling a gas tank or negligently replacing a cap upon an automobile gas tank, would reasonably anticipate and foresee probable injury as a result therefrom, the nature of gasoline considered.
The rule is that the exact consequences which would take place need not have been foreseen, but all that is required in order to hold a defendant is that on account of such negligence injury and damage might reasonably be foreseen as flowing from such negligence.
Illinois Central Railroad Company v. Siler, 239 Ill. 390, 82 N.E. 362, 15 L.R.A. (N.S.) 819; Green's Rationale of Proximate Cause, page 65; Hines v. Morrow, 236 S.W. 183; Stemler v. City of Pittsburg, 135 A. 100; Guinan v. Famous Players-Lasky Corp., 167 N.E. 235, 267 Mass. 501; Evans case, 122 So. 735, 154 Miss. 475.
Violation of statute or ordinance is evidence of negligence.
Milbury v. Turner Center System (Mass.), 174 N.E. 471.
Violating statute is negligence per se and one proximately injured thereby may recover therefor against violator.
Newell Contracting Co. v. Berry (Ala.), 134 So. 870; Daly v. Swift Co., 300 P. 265; Godfrey v. Queen City Coach Co., 159 S.E. 412, 201 N.C. 624; Teche Lines v. Bateman, 139 So. 159, 162 Miss. 404.
The facts in our present case required the trial judge to submit the question of negligence to a jury.
Elkton Auto Sales Corp. v. State of Maryland, 53 F.2d 8.
The gasoline in our case was wholly under the control of the defendants Miller and Gulf Refining Company, and the fire resulting therefrom occurred in the car of Miller and on the ground which had become saturated from the gasoline dripping therefrom, and neither of these defendants offered any evidence to explain the origin of the fire or that the igniting factor was due to some intervening cause which could not reasonably have been anticipated by the defendants and whether or not the intervening cause of throwing a lighted match in the gutter could not reasonably have been anticipated by these defendants, we submit, was most certainly a question for the jury in view of the findings of this court.
Evans v. Standard Oil Co., 154 Miss. 475, 122 So. 735.
Just as the court has held it was a question of fact for the jury to decide as to contributory negligence, so in our instant case it was a question for the jury to decide whether the defendants' negligence would probably cause harm to the plaintiff though the precise manner in which it occurred could not be foreseen.
Burk v. Hodge et al., 217 Mass. 182, 104 N.E. 450, 211 Mass. 156, 97 N.E. 920; Leahy v. Standard Oil Co. of N.Y., 224 Mass. 352, 112 N.E. 950.
We submit that the question of causation is a pure question of fact to be decided by the jury and that in this instance there was evidence justifying a finding that the defendant's negligence in overfilling the gas tank and in negligently replacing the cap thereon caused the injury suffered by the plaintiff, and that, therefore, the matter should have been submitted to the jury as to such negligence and damage.
Beach on Contributory Negligence (3 Ed.), par. 45; Teche Lines v. Bateman, 139 So. 159, 162 Miss. 404; Lynn v. Roberts, and Wimbush v. Roberts, 241 N.W. 214, 257 Mich. 116; Feeny v. Standard Oil Co. (Calif.), 209 P. 85; Armour Packing Co. v. Walker Price Oil Co., 1 La. App. 477; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; 29 Cyc., pars. 492-496; Wilbourn v. Charleston Cooperage Co., 90 So. 9, 127 Miss. 290.
Where an injury results from the negligence of defendant and some other contributing cause, but not an independent efficient cause, and the injury could not have occurred in the absence of either cause, defendant's negligence is a proximate cause of injury, if, under the circumstances of defendant's negligence, the injury was a probable, natural and usual result of the two contributing causes.
Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 46 So. 732, 55 Fla. 514, 20 L.R.A. (N.S.) 92; Burnett v. Alabama Power Co., 74 So. 459, 199 Ala. 337; Mars case, 9 F.2d 183.
Hirsh, Dent Landau, of Vicksburg, and Kennedy Geisenberger, of Natchez, for appellee, The Gulf Refining Company.
This court, in no uncertain terms, has held that verdicts and judgments must be based on evidence and rational inferences from the proven facts and circumstances and not upon speculation and conjecture.
Tyson v. Utterback, 154 Miss. 381, 122 So. 496.
The evidence and the facts in this case present no grounds for rational inference that the fact that ten gallons of gas were placed in the tank and the cap properly placed thereon caused the fatal injury. This was done three hours and fifty minutes before the tragedy occurred. The car had been moved by the defendant, Miller, its owner, from its parking place and driven around over the city streets; automobiles had been continuously parked and re-parked near it, in front of and adjacent to the Eola Hotel, in that part of the street where Miller's car was parked.
It is the duty of the trial judge to direct a verdict for one of the parties when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding
Baltimore O.R. Co. v. Groeger, 266 U.S. 521, 524, 45 S.Ct. 169, 69 L.Ed. 419, 422; Elliott v. Gulf, Mobile and Northern Railroad Company, 145 Miss. 768, 111 So. 146.
The defendant is not liable. The accident was not one which could have been reasonably foreseen or prevented.
Precaution is a duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand that a person, should prevision or anticipate an unusual, improbable or extraordinary occurrence, though such happening is within the range of possibilities.
Illinois Central Railroad Co. v. Bloodworth, Record No. 30,038.
The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.
50 C.J. 837; 22 R.C.L. 110; Bufkin v. Louisville Nashville Railroad Co., 161 Miss. 594, 137 So. 517; Louisville Nashville Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434; Howell v. Railroad Co., 75 Miss. 242, 21 So. 746; Clisby v. M. O. Railroad Co., 78 Miss. 937, 29 So. 913; Y. M.V. Railroad Co. v. Millsaps, 76 Miss. 855, 25 So. 672; Miss. Power Co. v. Sellers, 160 Miss. 512, 133 So. 594; Topeka Santa Fe Railroad Co. v. Calhoun, 213 U.S. 1.
But even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight.
Pollock, Torts (8 Ed.), 41; Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 75; Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425.
Kennedy Geisenberger, of Natchez, for appellee, J. Balfour Miller.
The facts fail to present any question of negligence on the part of the appellee which could have been submitted to the jury.
It is our contention that Mr. Miller was required to use only ordinary care that a reasonably prudent man would exercise under the circumstances. That he, as the driver and operator of his automobile, is not made by law an insurer of all persons against injury through the operation of his automobile, and if, while he was in the exercise of that reasonable care and caution required of him by law, a person became injured either through the operation of the car or explosion of the fuel which propels it, then the appellee is not liable for such injuries, there being no negligence on his part under the law.
2 R.C.L. 1182, sec. 18; and cases cited in 1 R.C.L. (perm. sup.), page 642, sec. 18.
Appellants contend, however, that because of violation by appellee of an ordinance of the city of Natchez, his conduct was either a presumption of negligence or prima facie negligence or negligence per se. It is our contention that there was no violation of this ordinance, and that it did not cover, nor was it intended to cover, a case of the kind now before the court.
In order for there to be a violation of this ordinance, must be present two conditions: first, there must be a leaky part of the motor vehicle, and second, gasoline or oil must drip upon the streets.
We maintain, (1) that, under the plain, general and ordinary use and meaning of the word, there was no leaky apparatus or part of appellee's automobile, and (2), that the ordinance being criminal in its nature, is to be strictly construed in favor of anyone charged with the violation thereof.
The court, in construing a statute, will assume that the Legislature employed the words of the statute in their usual and most common sense.
State v. J.J. Newman Lbr. Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 858; Town of Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155; Warburton-Beacham Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 62 A.L.R. 999.
The rule of construction limits the court to find a violation of the ordinance only by a breach falling strictly within its terms.
McInnis v. State, 97 Miss. 289, 52 So. 634; State v. Traylor, 100 Miss. 544, 56 So. 521; Ricks v. State, 146 Miss. 659, 111 So. 752; Waldrup v. State, 154 Miss. 646, 122 So. 771.
If we are correct, then appellee could be held to answer only for the result of his negligence. The evidence in this case shows that Mr. Miller did everything and, indeed, more than an ordinary and reasonably prudent person would have done under the same circumstances.
Argued orally by S.B. Laub and Chas. F. Engle, for appellant, and by W.A. Geisenberger and R.L. Dent, for appellee.
This is an action by the mother and next of kin of Russell C. Burnside, a minor eleven years of age, to recover damages accruing to them by reason of the fact that Russell was "burned to a crisp" and died from the effects of an explosion of an automobile tank on the streets of Natchez. After all the evidence was in, the court below gave a peremptory instruction for both defendants; and the plaintiffs in the court below prosecute an appeal here.
The facts necessary to understand the case are: Appellee Miller owned a Nash Cabriolet, and on December 24, 1931, he drove his car along the streets of Natchez to a filling station of the appellee Gulf Refining Company, which was located on the corner of Pearl and Franklin streets, near the business section of the city. He directed an employee of the station to fill the car's tank with gasoline. Miller left the car and proceeded to his place of business at about ten o'clock in the morning. He did not see the tank filled, but about one o'clock he returned to a point near the filling station where his car was parked on a vacant lot, of which he had control, walked to the rear of the car, saw the tank and the cap attached to the nozzle, and there appeared to be nothing out of the ordinary in connection therewith. He observed no sign of leaking gasoline. From there he drove less than two blocks, parked his car on a slope of the public street at a place designated for such purposes by the municipal authorities, and went into the Eola Hotel. Twenty-five or thirty minutes later he was notified that his car was on fire.
One witness testified that he was standing on the sidewalk, saw a young man light a cigarette, and throw the lighted match in the gutter which caught fire and burned up to Miller's car, and there burned on the nozzle of the tank. It appears that, so long as the gasoline was allowed to burn through the nozzle, there was no explosion. The city firemen came up shortly after the blaze was discovered and put Foamite on the tank; one man threw his coat over the cap and attempted to remove it, and at that time the explosion occurred and injured the Burnside child.
The nozzle extended about four inches above the tank, and through this the gasoline was deposited in the tank of the car. The nozzle had a cap with a vent hole in it, and the cap was fastened by a half twist.
It appears that the fire must have continued for twenty or twenty-five minutes before the tank exploded. The tank was a regular standard size, and had no defect or leak in it. The cap was regular, and there was nothing unusual about the car, the tank, or its fixtures. No person is shown to have known that there was anything unusual, abnormal, or irregular about the car until the fire was discovered burning from the nozzle of the tank thereof. An expert testified that gasoline was highly inflammable, and also that, when it was removed from a storage tank under the surface of the ground to a tank above ground, it would expand to the extent of about a pint to each ten gallons.
Appellants contend that negligence is presumable as against the appellees on two theories: Either that the tank was overfilled with gasoline by the Gulf Refining Company, or that the screw cap was improperly placed thereon by an employee of the company.
The liability of Miller is predicated upon the allegation that he violated the following ordinance, to wit:
"An ordinance to regulate traffic and the use of the streets and alleys in the city of Natchez, Mississippi, by pedestrians, horses, animals, automobiles and vehicles of every kind and description, to define the term used in said ordinance; to make it a misdemeanor to violate any rule or regulation prescribed in the ordinance; to repeal all ordinances in conflict with this ordinance and for other purposes governing the use of the streets and traffic in said city. . . .
"Section 43. Be it further ordained that any person who shall permit a motor vehicle to stand upon the streets of the city of Natchez with a leaky carburetor or other appliance or part of said motor vehicle, permitting gasoline or oil to drip on the street or streets of the said city shall be guilty of a misdemeanor and shall be liable to the penalties imposed by this ordinance."
This unfortunate accident occurred on Christmas Eve at a time when fireworks and the usual Christmas celebration was in progress on the streets of the city of Natchez.
We are of the opinion that the lower court properly granted a peremptory instruction in this case. So far as the appellee Gulf Refining Company is concerned, there is not the slightest proof that the tank was overfilled, neither is there any proof that the screw cap was not properly placed thereon. Employees of the Gulf Refining Company had put gasoline in the tank of the car some three hours before the car was removed from where they placed it, and then twenty-five or thirty minutes after the removal fire developed in the vicinity of the car. What caused the gasoline to flow from the nozzle of the tank, four inches above the compartment of the tank, is wholly unexplained.
Many cases are cited by appellants with regard to gasoline explosions, but none so nearly applicable as the case of Standard Oil Company of Kentucky v. Evans, 154 Miss. 475, 122 So. 735, in which case it was shown that the oil company was negligent, in that its employee permitted the gasoline to overflow from the tank as he was putting it therein. He was negligent in not attending to his duty in transferring the gasoline to the car; the tank was filled, ran over, and the automobile was hot, which caused the gasoline to explode and injure the owner of the car. This court held there was liability, and pointed directly to the negligence. On no theory can it be said on this evidence that the Gulf Refining Company or its agents or employees were negligent, because the record is entirely silent; nor can it be said that they as reasonable people could anticipate that the gasoline would flow from the tank, if it did do so, into the gutter. It is not shown that the Gulf Refining Company had any knowledge whatever as to what use would be made of the car after it put gasoline in it, and, if the owner parked the car on a slope to the extent that the gasoline would flow from the tank up through the nozzle and fall to the ground, that certainly was an event which a reasonable person would not be expected to anticipate.
As we said in the case of Illinois Cent. R. Co. v. Blood-worth, 145 So. 333, 336: "Precaution is a duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand that a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. . . . Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected. Remote possibilities do not constitute negligence from the judicial standpoint." Again in Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 498, we said: "As to conjectures, these do not belong to courts, juries, or witnesses — decrees and judgments may not be based on conjectures."
Under the theory of res ipsa loquitur, there was too much time and too many actors connected with the fire for this accident to be ascribed to a negligent putting of the gasoline into the tank. Neither can Miller, the owner, be held liable, for it is not shown that he had any notice that there was any defect in the tank, nozzle, or cap of his car, and the ordinance certainly did not create liability where no act of his, or omission of his, brought about the injury in this case. He did not permit the nozzle to leak, nor was it shown that the nozzle was leaky within the sense and meaning of the ordinance above quoted. He had no notice thereof, nor was there anything to put him on notice. The owner did not fail in any duty, nor did he omit to do anything, so far as this record is concerned, which brought about this injury. There is nothing in the range of either of the defendants' conduct which a reasonably prudent man could anticipate would bring about probable harm to anybody. The transaction was the common ordinary servicing with gasoline of a normal motorcar equipped with ordinary tank and usual fixtures.
There are no facts or circumstances here from which negligence on the part of either Miller or the Gulf Refining Company can be fairly inferred.
Affirmed.