Opinion
Rehearing Denied Nov. 18, 1937.
Appeal from Superior Court, Los Angeles County; Walter S. Gates, Judge.
Action by Joe Mondine against Jean P. Sarlin and others. From a judgment for plaintiff, the defendant named appeals.
Reversed. COUNSEL
Joseph Scott, J. Edward Keating, and Robert F. Shippee, all of Los Angeles, (J. Howard Ziemann, of Los Angeles, of counsel), for appellant.
E. D. Reiter, Ellis D. Reiter, Walter S. Barrette, and Francis M. Reiter, all of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries defendant Sarlin appeals.
Viewing the evidence most favorable to plaintiff, the pertinent facts are:
At about 7:45 a. m. on May 1, 1936, plaintiff drove his tank truck onto the premises of defendants’ oil petroleum products plant for the purpose of buying gasoline. Defendants’ dispensing tank was empty and plaintiff agreed to use his own tank truck to move some gasoline from one of the storage tanks to the dispensing tank. This operation was undertaken in the following manner:
An electric, motor-driven gasoline pump was placed in position so that gasoline could be pumped from the storage tank to the tank on plaintiff’s truck. The pump was connected to the storage tank by a hose belonging to the defendants while a hose belonging to the plaintiff was connected to the outlet of the pump, the other end of which was placed unsecured in an opening at the top of the tank on plaintiff’s truck. Defendant Sarlin, after turning on the electricity which started the motor attached to the gasoline pump, left the scene, going into his office and not returning until after the accident hereinafter described.
Plaintiff, who had operated the electric gasoline pump previously on more than one hundred occasions, observed several times during the eight or ten minutes after the pumping started the pump and motor to see that they were functioning properly. He then climbed on his truck to see how much gasoline had been pumped into the tank and on turning to look again at the gasoline pump he observed sparks four or five inches long shooting from the motor. He immediately descended from his truck and started toward the motor to pull the plug from the socket at the motor in order to break the electrical circuit. When within a short distance from the motor an explosion occurred, and the hose leading from the motor to the tank truck sprayed plaintiff with gasoline which, becoming ignited, resulted in his being seriously burned.
The only question presented for determination is this: Was there substantial evidence to sustain the implied finding of the jury that defendant was negligent in the maintenance or operation of the motor and gasoline pump, which was the proximate cause of plaintiff’s injury?
This question must be answered in the negative. It is the settled law of this state that a defendant is not liable for nor required to guard against casualties which have not been known to have occurred and which may not be reasonably anticipated. It is likewise settled that, when that which never happened before and which in its character is such as not naturally to occur to prudent men to guard against, does occur, the mere happening of the event does not furnish good ground for a charge of negligence in not foreseeing the occurrence and guarding against it. Morris v. Southern Pacific Co., 168 Cal. 485, 490, 143 P. 708. In the instant case an examination of the record discloses that the motor and gasoline pump which were the cause of the injury had been in use for a long time without ever having given any indication that they were a source of danger. There is no evidence that either the motor or pump was defective in any particular or that others engaged in a similar line of business did not consider it a safe practice to use like equipment for the purposes for which the motor and pump in the instant case were being used.
It therefore is clear, applying the above stated rule of law, that the unfortunate accident which resulted in serious injury to plaintiff was an unavoidable accident, which defendant by the use of reasonable care could not have avoided, and, therefore, there was not any negligence for which defendant properly could be held liable.
The doctrine of res ipsa loquitur applies only where the instrumentality causing damage is in the possession and under the control of the defendant. Hernandez v. Southern California Gas Co., 213 Cal. 384, 388, 2 P.2d 360; 19 Cal.Jur. 709 (1925); 8 Cal.Jur. 10 Yr. Supp. 384, § 125 (1936). Hence, in the instant case this doctrine is inapplicable, since it is conceded that the motor and pump at the time of the accident and for some period prior thereto were in the exclusive possession and under the control of plaintiff.
For the foregoing reasons the judgment is reversed.
We concur: CRAIL, P. J.; WOOD, J.