Alfson v. Manhattan Oil & Linseed Co.

176 N.W. 30 | S.D. | 1920

McCOY, P. J.

This action was instituted to recover damages for alleged negligence on the part of an. agent of defendant in causing a fire to consume a certain building and contents, the property of plaintiff. There was verdict and judgment in favor of plaintiff, from which defendant appeals.

The vital question presented is whether or not the evidence submitted was sufficient to warrant the verdict that the, negligence of defendant’s agent was the cause of -the fire. The evidence tended to show that respondent was the owner of an automobile garage and repair shop at the town of .Ethan; that .at the time in question .said agent drove appellant’s oil wagon, containing gasoline, to said garage for the purpose of supplying respondent with gasoline; that in delivering said gasoline said agent spilled a large quantity thereof and permitted the same to run upon the ground and floor under said wagon and garage, and that in some manner said gasoline became ignited and consumed said garage and contents; that the said agent was the only person in the immediate place where said gasoline was spiling’ of the gasoline. The question of negligence was fairly was measuring and removing said gasoline from said wagon and at the time he spilled said gasoline he was smoking a cigar; and that there was then and there a strong wind blowing. There was some conflict in the testimony. Whether or not the alleged negligence of said agent caused said fire was purely a question of fact for the determination of the jury. The jury heard all the witnesses and observed) their demeanor when testifying. We cannot say as a matter of law that the facts were insufficient to. justify the verdict. The spilling of such quantity of gasoline and! permitting the same to run over the floor of the garage, of itself, might have been very negligent, and the direct cause of the fire, regardless of what did in fact cause the ignition. There is but little conflict, if any, in regard to the spilled at. the time the fire started; that at the said time said agent-submitted by the instructions of the court. All assignments of error have been carefully considered.

Finding no error in the record, the judgment and order appealed from are affirmed.