Summary
In Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850 (1935), the defendant railroad had negligently allowed a tank car filled with gasoline to overflow.
Summary of this case from Lowery v. Illinois Cent. Gulf R. Co.Opinion
No. 31571.
March 18, 1935. Suggestion of Error Overruled, April 29, 1935.
1. NEGLIGENCE.
A "superseding cause" is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.
2. NEGLIGENCE.
Intervening act that combines with negligent act of third person to harm another does not become "superseding cause" where it is a normal response to situation created by negligence of third person and manner in which it is done is not extraordinarily negligent.
3. NEGLIGENCE.
Oil company's negligence in permitting storage tank to overflow held not superseded by act of third person who turned off electric switch connected with motor that operated storage pump and thereby produced electric sparks that caused fire that resulted in death of another person where turning off of switch was normal response to situation created by oil company's negligence and there was no proof that it was negligently done.
4. NEGLIGENCE.
Original negligence of another is not superseded by intervening act of person injured unless such person's conduct is so extraordinarily hazardous that party guilty of original negligence could not have realized that injured person might so act.
5. NEGLIGENCE.
Whether attempt to extinguish fire surrounding storage tank and threatening destruction of property in vicinity was so extraordinarily hazardous as to supersede original negligence of oil company in permitting overflow of tank and to prevent recovery for death of person killed while attempting to extinguish fire held for jury.
6. MASTER AND SERVANT.
Employer's general direction that deceased employee assist in extinguishing fire on nearby premises held not negligence so as to render employer liable for death of employee who was killed while acting on his own responsibility in dangerous situation.
7. NEGLIGENCE.
Refusal to charge that oil company which negligently permitted storage tank to overflow could not be liable for death of person killed while attempting to extinguish fire if his death was proximately caused by intervening act of another who in throwing electric switch to stop storage pump caused electric sparks which started the fire held not error under evidence.
8. NEGLIGENCE.
Refusal to charge that oil company which had negligently permitted storage tank to overflow could not be liable for death of person attempting to extinguish fire if death was proximately caused by order of deceased's employer that deceased assist in extinguishing fire held not error where order was normal response to situation negligently created by oil company and did not require employee to incur extraordinary hazard.
9. DEATH.
Fifteen thousand dollars to widow and children of person killed while attempting to extinguish fire held not so excessive, particularly where no request was made for instruction that jury might diminish damages otherwise allowable in proportion to decedent's negligence.
APPEAL from the circuit court of Harrison county.
HON.W.A. WHITE, Judge.
Action by Elma Richmond and others against the Superior Oil Company and the Standard Brands, Inc. From a judgment for plaintiffs, defendants appeal.
Judgment affirmed as to the Superior Oil Company, and reversed and rendered as to the Standard Brands, Inc.
U.B. Parker, of Wiggins, for appellant, Superior Oil Company.
Appellant, Superior Oil Company, first, by its demurrer, contended that the declaration showed on its face that the injury to and death of the deceased was proximately caused by an independent, efficient, intervening cause, to-wit: the act of Love Stewart in going upon the property of defendant Superior Oil Company, without invitation, and negligently committing an act which caused the ignition of gasoline vapors.
Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Wharton on Negligence, sec. 134.
Where a third person would only be using the negligence of a first person to accomplish his purpose, there would be no legal connection between the first wrongdoer and the intervening act.
Louisville N.R. Co. v. Daniels, 135 Miss. 33; Milwaukee St. Paul R. Co. v. Kellogg, 94 U.S. 469; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Southern Pacific Co. v. Ralston, 62 F.2d 1026.
Where negligent act of other than that charged, committed by legally responsible persons, acting independently, intervenes and directly causes injury, unless it could have been anticipated by a reasonably prudent person, intervening act is "proximate" cause and act charged is "remote" cause, for which there is no liability.
Southern Pacific Co. v. Ralston, 62 F.2d 1026; Wharton on the Law of Negligence, sec. 134; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 52, 19 L.Ed. 65; Anderson v. Baltimore O.R. Co., 51 L.Ed. (N.S.) 888; Stone v. Boston A.R. Co., 171 Mass. 536, 51 N.E. 1; Claypool v. Wigmore, 34 Ind. App. 35, 71 N.E. 509.
The declaration showed on its face that the deceased was in a place of safety and was neither invited nor instructed by the appellant to go upon its premises and place himself in a place of danger; that he was a volunteer, with full knowledge of the danger incident to his conduct, and that Superior Oil Company is in no way responsible and liable for his injury and death.
45 C.J., page 1043, sec. 600; Indiana Natural Gas, etc., Co. v. O'Brien, 65 N.E. 918, 66 N.E. 742; Warren v. R.R. Co., 163 Mass. 484, 40 N.E. 895; O'Malley v. Gas Light Co., 158 Mass. 135, 32 N.E. 1119; 47 L.R.A. 161; Minor v. R.R. Co., 153 Mass. 398, 26 N.E. 994.
Our defense is that there was an existing dangerous condition and that regardless of how it came about or what caused it, the deceased was in a place of safety, and with full knowledge and ability to appreciate what he saw from the glaring facts confronting him, he took the risk of the hazard, or incurred the risk incident thereto.
Republic Iron Steel Co. v. Fuller, 60 So. 475; Johnson v. New Orleans Terminal Co., 97 So. 795; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 650; Gover v. Central Vermont R. Co., 118 A. 874; Miner v. Connecticut River R. Co., 26 N.E. 994; Indiana Natural Gas Oil Co. v. O'Brien, 160 Ind. 266, 65 N.E. 918, 66 N.E. 742; Dow v. Town of D'Lo, 152 So. 474; Greenville v. Middleton, 124 Miss. 310; Doughtery v. Pratt Institute, 155 N.E. 67; Kauffman v. Machine Shirt Co., 140 P. 15; Kelly v. Hinds Directory General, 102 S.E. 921; Cleveland C.C. L. Ry. v. Ballantine, 84 Fed. 935; Standard Oil Co. v. Titus, 219 S.W. 1077; Ackerman v. Pierre Marquette Ry. Co., 108 N.E. 144; 45 C.J., page 957, sec. 514; Ford Motor Co. v. Casey, 252 Fed. 120, 164 C.C.A. 232; Wright v. J.A. Richards Co., 108 So. 610; Thierry v. Oswell, 102 So. 903; Walker v. Nona Mills Co., 92 So. 318; Little v. Wilberts' Sons Lbr. Co., 76 So. 582; Pittsburg C.C. St. L. Ry. Co. v. Hoffman, 107 N.E. 315; Terre Haute Ec. Co. v. Young, 104 N.E. 780; Diamond, etc., Co. v. Cuthbertson, 166 Ind. 290, 76 N.E. 1060.
The amount of this verdict, on its face, evidences prejudice and an absolute disregard for the facts and the evidence offered in support of plaintiff's claim for damages.
Carl Marshall, of Gulfport, for appellant, Standard Brands, Inc.
The evidence fully disclosing all the facts and circumstances of the cause, and manifesting without conflict or contradiction that Standard Brands, Inc., is not liable to respond in damages to the appellees by reason of the unfortunate and tragic death of their decedent, the judgment appealed from should be reversed, and the cause here dismissed, as to the appellant Standard Brands, Inc.
We believe that a moment's reflection, and even a cursory glance through the authorities, is sufficient to convince one that it is not negligence for the appellant Standard Brands, Inc., to respond to the official call for volunteers, and to endeavor to protect its own and the community's property, and the lives of the community's citizens, through the agency of its employees, against a dire peril not created by any negligence or fault of its own; and, conceiving that familiar and elementary principles are involved in a consideration of that appellant's contention here, we ask leave to cite only one or two controlling authorities, directly in point.
Goodyear Yellow Pine Co. et al. v. Clarke, 163 Miss. 661, 142 So. 443; Maltbie v. Belden, 167 N.Y. 307, 60 N.E. 645, 54 L.R.A. 52.
The risk not having been caused or enhanced by any negligence of the employer defendant, the defense of assumption of the risk remains in full flower as at common law, unaffected by the Mississippi statute; and it not being negligence per se for the employer to endeavor to protect its own and others' property by combatting flames through the agency of employees, the case cannot be one of liability of the employer.
In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or his master's representative, the servant must show that the order was a negligent one under the circumstances.
Rosaman v. Ga. Ry. P. Co., 91 S.E. 90, L.R.A. 1917C 483; Hope v. Natchez C. M.R. Co., 98 Miss. 822, 54 So. 369; International Ship Building Co. v. Carter, 121 Miss. 103, 83 So. 413; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Powell v. Plant, 23 So. 399.
The amount of damages awarded the appellees below was, and is, grossly excessive.
B. Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807; Belzoni Hardware Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Cumberland Tel. Tel. Co. v. Pitchford, 30 So. 41.
English Lindsey and Bidwell Adam, both of Gulfport, for appellees.
The act of Love Stewart was not independent, intervening, efficient cause.
11 R.C.L., p. 662; Stone v. Texas Co., 105 S.E. 425.
When Louis Varnado left the plant of Superior Oil Company unguarded while this gasoline was being pumped, his act was little short of criminal negligence, and no matter how the gasoline became ignited, the original negligence of Varnado was the proximate cause of the fire and explosions and every injury resulting therefrom.
Bradley v. Shreveport Gas, Electric Light Power Co., 76 So. 231; 21 A. E.E. of L., pages 494 and 495; Montgomery v. Gulf Refining Co. of La., 121 So. 578.
The rule is that, if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury.
Russell v. Williams, 151 So. 372; Moore v. Lanier, 52 Fla. 353, 42 So. 642; Cumberland Tel. Tel. Co. v. Woodham, 54 So. 890.
Appellant Superior Company was not relieved from liability for death of Joe Richmond on doctrine of assumed risk or incurred risk.
Henry v. Cleveland, C.C. St. L.R. Co., 67 Fed. 426; Illinois C.R. Co. v. Siler, 15 L.R.A. (N.S.) 821; Liming v. Illinois C.R. Co., 81 Iowa, 446, 47 N.W. 66; 45 C.J., p. 920; Wilson v. Northern Pacific R. Co., 30 N.D. 456, 153 N.W. 429, L.R.A. 1915E 991; Houston Belt Terminal Ry. Co. v. O'Leary, 136 S.W. 601; Bucholz v. Standard Oil Co., 244 S.W. 973; I.C.R. Co. v. Thomas, 68 So. 773, 109 Miss. 536.
Appellant Standard Brands was not entitled to peremptory instruction.
There is sufficient evidence in the record upon which the jury could base a finding that Joe Richmond went to the fire to fight the fire for the purpose of protecting the property of Standard Brands, Inc., and that in doing this Joe Richmond was acting in good faith and upon a direct command given him by Tom Fox Walton, superintendent of Standard Brands, Inc. This being true, it is our contention that the court could not grant Standand Brands, Inc., a peremptory instruction without committing error, and that this case was properly submitted to the jury, and that the finding of the jury is conclusive as to these facts.
18 R.C.L., sec. 147, page 654; 20 R.C.L., sec. 110, page 133; 39 C.J. p. 179; 30 L.R.A. (N.S.) 436; Perrier v. Dunn Worsted Mills, 29 R.I. 396, 71 A. 796; Butler Ballast Co. v. Hoshaw, 94 Ill. App. 68.
If the danger of obeying an order is not so glaring that no prudent man would have undertaken it, the law will not declare the servant's act of obedience negligence per se, but will leave it to the jury to say whether he ought to have obeyed the order.
Galveston, H. S.A.R. Co. v. Puente, 30 Tex. Civ. App. 246, 70 S.W. 362; Lowe Mfg. Co. v. Clara Payne, 30 L.R.A. (N.S.) 436; Dallemand v. Saalfeldt, 48 L.R.A. 753; Moline Plow Co. v. Anderson, 19 Ill. App. 417.
It is universally agreed that the servant does not stand on the same footing with the master, and all the authorities hold that the primary duty of the servant is obedience.
Indiana Car Co. v. Parker, 100 Ind. 181; Shortell v. St. Joseph, 104 Mo. 114, 16 S.W. 397; Choctaw, Oklahoma Gulf R. Co. v. Ebenezer Jones, 92 S.W. 244, 4 L.R.A. (N.S.), page 837.
The servant, in obeying an order given him by the master, does not assume the risk unless the danger is so great that no prudent man would risk it.
Vidrine v. Dupre, 67 So. 892; St. Louis S.F.R. Co. v. Morris, 93 P. 157, 13 L.R.A. (N.S.) 1100; Western Coal Mining Co. v. M'Callum, 237 Fed. 1003; Booth Flynn v. Price, 183 Ark. 975, 39 S.W.2d 717, 76 A.L.R. 957; McPhee case, 222 Mass. 1, 109 N.E. 633, 10 N.C.C.A. 257.
Whenever the evidence reasonably authorizes an inference supporting a material issue necessary for a recovery, it is the duty of the court to submit the issues to the jury.
Bennett v. Gulf, C. F. Ry. Co., 159 S.W. 132; Evans v. Brown, 106 So. 282.
The evidence was sufficient to support verdict for plaintiff and against Standard Brands, Inc.
The amount of the verdict is not excessive.
Baker v. Adkins, 278 S.W. 272; Noe v. Great Northern R. Co., 209 N.W. 905; Rio Grande, E.P. S.R. Co. v. Guzman, 221 S.W. 1102; Smith v. N.Y.C.R.R. Co., 183 App. Div. 478, 171 N.Y. Supp. 64; B. Kullman Co. v. Samuels, 114 So. 807, 148 Miss. 871; Murry Chev. Co. v. Cotten, 152 So. 657.
Watkins Eager, of Jackson, for appellant, Superior Oil Company, on suggestion of error.
This appellant was entitled to a directed verdict at the hands of the lower court, and the opinion and judgment of this court heretofore rendered should be set aside and judgment entered reversing said case as to this appellant and entering judgment here in its favor.
Negligence in order to justify cause of action arising therefrom must be actionable.
45 C.J., page 631, par. 2; 22 R.C.L. 113, par. 3; Pounders v. Day, 118 So. 299; McDonald v. Collins, 144 Miss. 825, 110 So. 663; Billingsley v. I.C.R.R. Co., 100 Miss. 624, 56 So. 796.
That injury might not have occurred except for negligence of appellant, insufficient to justify causal connection between injury and appellant's negligence.
L. N.R.R. Co. v. Daniel, 135 Miss. 40, 95 So. 434; Bufkin v. L. N.R.R. Co., 161 Miss. 594, 137 So. 517.
Alleged wrongdoer required to foresee probable and not possible consequences.
22 R.C.L., page 124, par. 11.
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.
2 Restatement Torts, sec. 440; Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890.
In order to constitute actionable negligence, it is not enough to prove the accident is the natural consequence of the negligence, but it must also have been the probable consequence.
22 R.C.L. 121; Howe v. West Seattle Land, etc., Co., 21 Wn. 594, 59 P. 495; McKenna v. Baessler, 86 Iowa, 197, 53 N.W. 103, 17 L.R.A. 310.
That appellant created a condition or occasion making injury possible, not sufficient to justify cause of action.
Berryhill v. Nichols, 158 So. 470; Brame v. Light, Heat Water Co., 95 Miss. 26, 48 So. 728, 21 L.R.A. (N.S.) 468; Schwartz v. California Gas Electric Corp., 163 Cal. 398, 125 P. 1044-1046; Standard Oil Co. v. Evans, 154 Miss. 475, 122 So. 735; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Stone v. Boston Albany Railroad Co., 51 N.E. 1; Seifferman v. Leach, 161 Miss. 853, 138 So. 563.
The verdict of the jury and the judgment thereon is so grossly excessive as to manifest bias and prejudice and should not be permitted to stand undisturbed.
Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 66, 105 So. 858; Goodman v. Lang, 158 Miss. 204, 208, 130 So. 50; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 325, 87 So. 661; Seifferman v. Leach, 161 Miss. 853, 859, 138 So. 563; Berryhill v. Nichols, 158 So. 470.
Argued orally by Carl Marshall and U.B. Parker, for appellants, and by Bidwell Adam and English Lindsey, for appellees.
This is an appeal from a judgment against the Superior Oil Company and the Standard Brands, Inc., for fifteen thousand dollars rendered in an action by the widow and children of Joe Richmond, deceased, for damages said to have accrued to them because of the death of Joe Richmond, which, it was alleged, was caused by the negligence of the appellants.
Appellants complain of the refusal of the court below to direct the jury to return a verdict in their favor.
The facts out of which the claim for damages grew are, in substance, as follows: The Superior Oil Company has a bulk sales station in the town of Wiggins, at which it stores, for sale and distribution, petroleum products, all of a highly inflammable nature, in several large metal tanks. The plant of this company is situated in a thickly populated section of the town, there being in the immediate vicinity thereof a number of dwelling and business houses, all of which would be threatened by fire of any considerable proportion on the Superior Oil Company's premises, among which are houses owned by the Standard Brands, Inc. The Superior Oil Company receives its petroleum products from a railroad company which delivers them in tank cars placed on a spur track near the Superior Oil Company's storage tanks, from which the company pumps the products into these storage tanks. This is done by means of a metal pipe extending from the tank car to the storage tank and operated by a pump inclosed in a small pump house situated about ten feet from one of these storage tanks. The power for the operation of this pump is from an electric motor in the pump house, in which there is also an electric switch, by means of which the electric current is turned onto and off from the motor. This switch was incased in a metal box, but the jury was authorized to find that (1) this box did not prevent gasoline fumes from coming in contact with the switch, and (2) the switch when turned off and on would emit electric sparks.
The town of Wiggins maintains a fire department, consisting of the necessary equipment therefor in charge of and under the direction of a fire chief, who is assisted by volunteers when putting out fires. On the occasion in question, the railroad company placed a tank car, containing between seven and eight thousand gallons of gasoline, at the proper place on its spur track, near the storage tanks. The agent of the Superior Oil Company in charge of its plant connected this tank car with one of its storage tanks by the metal pipe used therefor, for the purpose of transferring the gasoline to the storage tank. He turned the electric current onto the motor, thereby starting the pump, and then left the vicinity of the plant, leaving no one there to attend to the pumping of the gasoline. While he was away, it was discovered by persons in the vicinity that the storage tank was overflowing, the gasoline running down the tank and on the ground. Stewart, who was at a nearby business plant, became aware of this situation, went to the pump house, and, at least the jury was warranted in so believing, turned the electric current off by means of the switch. Immediately thereafter Stewart was seen to leave the pump house with his clothing in flames, from the effects of which he soon died. Flames immediately appeared from burning gasoline on the transfer pipe and the ground between the pump and the storage tank. Notice thereof was immediately given by some one to the fire chief, who came to the scene, organized his volunteer helpers, and attempted to put the fire out, one method therefor being the playing of water on the fire from one or more large hose. He failed to get the fire under control and called for assistance from the bystanders, a number of whom had gathered, and went to the plant of the Standard Brands, Inc., which was in danger from the fire, and told its foreman that he needed help. This foreman then said to a group of his employees, "Let's go and help Mr. Jones" (the fire chief), and, according to the evidence for the appellees, specifically directed Joe Richmond, an employee of the Standard Brands, Inc., to do this, telling him to "get on that hose and help Mr. Jones." This superintendent of the Standard Brands, Inc., had theretofore placed other of its employees on the roof of its building nearest the fire for the purpose of taking precautions to prevent the fire extending thereto. The fire continued to spread, reached the point on the storage tank where the transfer pipe entered it, and burned there for some time, resulting finally in the explosion of the tank. There were three explosions, the first of which was of the transfer pipe. This explosion may have occurred, but as to which the evidence is not altogether clear, before Jones called on the superintendent of the Standard Brands, Inc., for assistance. Some thirty or forty minutes thereafter one of the storage tanks exploded, and ten or more minutes thereafter the storage tank connected with the tank car also exploded.
Richmond was given no specific directions by any one, other than what has heretofore been stated, as to when, how, and where he should render assistance in fighting the fire. He assisted in holding one of the hose that was playing water onto the storage tank that last exploded, held the hose near its nozzle, and was standing very close to the storage tank where he remained for some time. The heat was very intense, and the danger from an explosion of the tank was evidently realized by some of the persons who were holding the hose with Richmond, and they abandoned it and went to places of safety, but Richmond and one or two others remained, Richmond saying, "Let's stick to her, I believe we are going to win the fight." Several minutes, not exceeding four or five, before the second tank, near which Richmond was standing, exploded, sounds came therefrom resembling, according to some of the witnesses, the popping off of steam, indicating that the danger of the tank's explosion was imminent. According to the evidence for the Superior Oil Company, this tank was equipped with safety valves which would release the pressure when fire heated the gasoline therein and tend to prevent an explosion, but this fact does not appear to have been known to Richmond. Jones, the fire chief, said that he had fought such fires before and had always extinguished them without the tanks exploding. Just before the tank exploded, Richmond dropped the hose and ran, but failed to get beyond the danger zone, and a large piece of the tank struck him, pinned him down, and flames therefrom ignited his clothing, from which he died almost, if not, immediately.
The ground on which the Superior Oil Company says it was entitled to a directed verdict is that the negligence of its servant in permitting the storage tank to overflow was superseded, and therefore was not a proximate cause of Richmond's death, first, by the intervening act of Stewart in turning off the electric current, and, second, by the act of Richmond himself in unnecessarily and recklessly exposing himself to the danger of the tank's explosion. A superseding cause is defined by 2 Restatement, Torts, section 440, as: "An act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about."
An intervening force which combines with the negligence of another in producing injury to a third person does not necessarily supersede the original act of negligence and become the sole proximate cause of harm produced thereby. Op. cit., 2 Restatement, Torts, sec. 441; Cumberland Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890. It does not become such a cause if it "is a normal response to a situation created by the" negligence of another "and the manner in which it is done is not extraordinarily negligent." 2 Restatement, Torts, sec. 447. When the storage tank began to overflow and to discharge gasoline, a highly inflammable substance, and no employee of the Superior Oil Company was present to stop it, the normal things for another to do, when he saw it, was to stop it himself, and, in doing so, he would be merely discharging a duty resting on the Superior Oil Company. 45 C.J. 933. It does not appear that Stewart was guilty of any negligence in the manner in which he stopped the flow of the gasoline; the turning off and on of an electric switch is a very simple act which any normal person could do. Stewart's act in turning off the electric switch, therefore, did not supersede the negligence of the Superior Oil Company's servant in permitting the storage tank to overflow.
We come now to Richmond's conduct in aiding the fire chief to extinguish the fire. If the escaping gasoline threatened harm to persons or property, the natural and ordinary thing for one to do, under whose observation it came, would be to attempt to prevent the threatened harm, and if his acts in so doing are not extraordinarily negligent, his intervention does not supersede the negligence which brought about the necessity for his intervention, although the intervener may himself be charged with contributory negligence. 2 Restatement, Torts, secs. 443, 445, and 447; Illinois C.R.R. Co. v. Thomas, 109 Miss. 536, 68 So. 773. The conduct of the intervener does not supersede the original negligence, although it is beyond that which is usual and customary in such situations and involved "an unreasonable risk of harm to" himself or to others. In order to supersede the original negligence, the intervener's conduct must be so extraordinary and dangerous to himself or to others that the person guilty of the original negligence could not "have realized that a third person might so act." Op. cit., 2 Restatement, Torts, sec. 447. Whether the intervener's conduct was of such character is for the determination of the jury, unless the court can safely say that only one inference can be drawn from the evidence, i.e., that the intervener's conduct was, or that it was not, of such character. Neither can be said here. The magnitude of the danger to persons and property from the burning gasoline was great. Others were incurring the same danger that confronted Richmond, and whether, under the circumstances, Richmond was guilty of extraordinary negligence in remaining longer in the danger zone than they was for the determination of the jury.
Louisville Nashville R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516, and Public Service Corporation v. Watts, 168 Miss. 235, 150 So. 192, relied on by the Superior Oil Company, are not in conflict herewith, for the intervening acts of negligence were not there induced by the negligent act of another, and committed in an attempt to prevent harm resulting therefrom. The court below committed no error in refusing to direct a verdict for the Superior Oil Company.
The liability of the Standard Brands, Inc., is said to arise because Richmond incurred the danger which resulted in his death under the direction of its superintendent, who had the right to direct him to assist in putting out the fire, because of the danger therefrom to its property. The act of this superintendent in merely directing Richmond to assist in putting out the fire was not of itself alone negligence, although some danger might be incurred by Richmond in obedience thereto. As hereinbefore stated, Richmond was given no specific direction as to when, how, and where he was to discharge this order, which cannot be construed to compel or authorize him to incur any great danger to himself. He acted on his own judgment as to the extent of the danger he should incur, and went beyond what his duty to his employer required, or the order given him could be held to have contemplated Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443. The request by the Standard Brands, Inc., for a directed verdict should have been granted.
The Superior Oil Company also complains of the refusal of the court below to grant two of its requested instructions. These instructions were to the effect that the jury should find for it if they believed from the evidence that Richmond's death was proximately caused (1) by the intervening act of Stewart, hereinbefore set forth, and (2) by the act of the Standard Brands, Inc., in ordering Richmond "into a known place of danger, after the place of danger had been created, without the knowledge or request of said defendant, Superior Oil Company."
The evidence does not disclose either directly or by inference any conduct on the part of Stewart, from which the jury could have said that his intervention superseded the negligence of the Superior Oil Company's servant in permitting the gasoline to overflow. So there was nothing on this issue to be submitted to the jury.
The order to Richmond by the Superintendent of the Standard Brands, Inc., to assist in controlling the fire, as hereinbefore said, was not of itself alone negligence, and even if it could be held to be such, it was, in so far as the Superior Oil Company is concerned, a normal response to the danger to the property of the Standard Brands, Inc., created by the negligent act of the Superior Oil Company's servant. In order to supersede this negligence, the order to Richmond must have required him to incur a danger so great that so to do was extraordinarily negligent. The requested instruction omitted this element.
Finally, the Superior Oil Company contends that the verdict is excessive to such an extent as to demonstrate that it was rendered because of passion or prejudice on the part of the jury. No request was made for an instruction charging the jury to diminish the damages they might award in proportion to the negligence they might attribute to Richmond, and the brief of counsel for the Superior Oil Company merely states that the verdict is excessive without pointing out any reason therefor, and an examination of the record discloses none such.
The judgment of the court below will be affirmed as to the Superior Oil Company, but will be reversed as to the Standard Brands, Inc., and a judgment final for it will be here rendered.
So ordered.