delivered the opinion of the court:
Plaintiff-appellant, Royal Insurance Company, as subrogee of plaintiffs-appellants, George and Rose Cohn, appeals from a judgment entered^ on a jury verdict for the defendants, Petroleum Heat and Power Company and its agent Leonard Lewandowski, in the Municipal Court of Chicago on February 23, 1962.
The plaintiffs-appellants allege four errors below: (1) that the court erred in refusing to direct a verdict for the plaintiffs because the defendants were negligent as a matter of law; (2) that the court erred in submitting the question of contributory negligence to the jury; (3) that the court erred on the admission of certain documents as evidence; and (4) that the court erred in giving certain of defendants’ instructions.
This action was brought for damages to a twenty-two unit apartment building located at 11 "West Pearson, Chicago, caused by a fire which occurred on January 13,1956. The fire was caused by the vaporization and fractionation of fuel oil which spilled over the top of the plaintiffs’ oil storage tank through a loosened manhole cover 21% inches wide located at the top of the tank. The defendant oil company through its deliveryman Lewandowski had delivered oil to the premises about two hours before the fire occurred. The defendant’s driver Lewandowski had returned to the premises immediately before the fire began to pump the spilled oil out of the pit adjacent to. the combustion chamber and back.into the truck. Lewandowski had returned at the request of the oil company which had been advised of the overflow by Mr. Dutile, the husband of the building manager. Both Lewandowski and Dutile witnessed the combustion of the spilled oil and both unsuccessfully attempted to quench the flames.
The principal controversy in this case centers around the conduct of the driver Lewandowski. There is no argument as to what actions Lewandowski performed. The argument concerns the legal significance of those actions.
It is -undisputed that Lewandowski was an experienced oil delivery driver who had delivered to the premises in question on numerous previous occasions. The building had recently changed ownership and the defendant had been retained to deliver oil on a “keep' fill” basis. Lewandowski had delivered 200 gallons of oil on December 4, 1955 ; 500 gallons on December 10, 1955; 500 gallons on December 23, 1955; 700 gallons on January 6, 1956; and 604 gallons on January 13,1956.
Lewandowski testified that he usually entered the basement before filling the tank for the purpose of measuring the amount of oil which would be required to fill the tank. Since the tank regulator was defective, Lewandowski usually inserted a measuring stick through the top of the tank after removing the cap of the defective oil gauge. On January 13, Lewandowski was unable to gain entrance into the basement of the building. He, therefore, made an “alley delivery” and determined how much oil would be needed to fill the tank by means of a “loose fitting.” Lewandowski testified that a “loose fitting” was performed by attaching the nozzle on the hose to the pipe protruding from the basement by means of an elbow in a loose way so that pressure built up inside the tank would cause oil to spurt out at the nozzle thereby signaling that the tank was filled. Lewandowski testified that he had used the “loose fitting” method before.
On January 13, there was no “gurgle” in the pipe or a “spurt” of oil. Lewandowski emptied his truck into the tank (604 gallons). The Cohns’ tank had a capacity of 1500 gallons. This delivery occurred during a cold period when a high consumption of fuel oil over a weekly period would not he unrealistic.
Lewandowski testified that he knew that the fuel gauge was defective but that he had no knowledge that the manhole cover was not tightly secured. There was conflicting testimony concerning whether the oil company had notice of the loosened manhole cover through its sales agent who had talked with the Cohns concerning a “maintenance” contract for the Cohns’ oil tank.
The plaintiffs-appellants contend that the actions of Lewandowski constituted negligence as a matter of law and therefore a verdict should have been directed for the plaintiffs. The duty of an oil company and its agents in the delivery of oil is to use ordinary care and they are bound to use caution commensurate with the known danger. Loverde v. Consumers Petroleum Co., 327 Ill App 210 (abst) (opinion, p 9),
We reaffirm the general rule as set forth in the Loverde case but do not find that Lewandowski acted flagrantly in disregard of ordinary care as a matter of law. On the contrary it is clear that the conduct of Lewandowski presented a jury question. The keep fill contract provided that the oil company should get a “signature where possible.” There are no facts here to suggest that Lewandowski deviated at all from the standard procedure in an oil delivery. He tried to get into the building. Only when he was unable to gain entrance did he resort to the alternate method. To hold that Lewandowski’s conduct constituted negligence as a matter of law would mean that no oil delivery could be made without entrance into the basement and an examination of the oil storage facilities.
Whether it is reasonable for an oil delivery agent to forego an exact measurement of the depth of oil in a tank in the exercise of ordinary care is a question of fact to be decided by the jury considering the special circumstances in which the incident arose. Only where there is an absence of probative facts to support a jury verdict is it reversible error for a trial judge to overrule a motion for a directed verdict or a motion for judgment notwithstanding the verdict. Manion v. Chicago, R. I. & P. Ry. Co., 12 Ill App2d 1,
Appellants next contend that the court improperly sent the question of the contributory negligence of the Cohns to the jury. Their position is that the loosened manhole cover was merely a passive condition which alone constituted no negligence whatsoever. Their contention is that Lewandowski had a duty to measure the tank from the inside of the basement. If he had done so no oil would have spilled over the top regardless of the loosened cover.
We have found above that Lewandowski was not required in the exercise of ordinary care to enter into the basement for the purpose of making an exact measurement of the depth of the oil in the tank as a matter of law. In addition the jury below found as a matter of reasonableness in this situation that there was no breach of the duty to use ordinary care on the part of the defendants.
Beyond this it is well settled in Illinois that “where one furnishing bulk products does not install the receptacle for those products, or the pipes connecting such receptacle with the source of supply necessary to fill them, and does not own or have control over them, he is not responsible for their condition or their maintenance and cannot be held liable for injuries caused by an accident arising out of a defective condition of such, receptacle or its equipment, in the absence of knowledge of such defect.” Allegretti v. Murphy-Miles Oil Co., 363 Ill 137, 142,
The appellants seek to avoid the impact of the Allegretti case by contending that the loosened manhole cover did not constitute a defect but rather was a passive condition. We agree that in determining whether plaintiffs’ conduct will bar their rights to recover for their loss, there must be kept in mind the distinction between that which directly and proximately produces, or helps to produce the result, as an efficient cause, and that which is a necessary or attendant circumstance of it. Bonnier v. Chicago, B. & Q. B. Co., 2 Ill2d 606,
All of the problems briefly mentioned above require inferences to be made from the facts for a determination. This has always been held to be the province of the jury. Schiff v. Oak Park Cleaners & Dyers, Inc., 9 Ill App2d 1, 11,
In the present case we believe that since the Cohns knew of the condition of the tank there was a question of foreseeability present from which an inference of either proximate cause or absence of proximate cause could be drawn. Whether the condition of the tank at the time of the fire be called defective or not is a semantical problem. There is no doubt that a tank with its cover unbolted is not in a condition to function for the purpose for which it was manufactured. Whether the maintenance of the tank in this unbolted condition constituted negligence, a defect or a passive condition is a question of fact. These questions were properly presented to the jury when they were directed to consider the question of contributory negligence.
Appellants next allege that instructions 12, 13, 16,17 and 18 were erroneously given and are grounds for reversal. Instructions 12 and 13 were standard instructions on contributory negligence. We find no error in admitting these instructions because as we have shown above the question of contributory negligence was properly presented to the jury.
Instruction 16 listed alternate methods of computing plaintiffs’ damages. Appellants contend that there was only one appropriate method of computation. We do not need to decide which or whether both are appropriate since this instruction cannot be considered reversible error under any theory. The error went to the issue of damages rather than to the issue of liability. Since no liability was found, the jury was not required to consider this instruction.
Instruction 17 is objected to as being peremptory in that it states that if the jury believes that the defendant has proved any of five enumerated defenses a verdict shall be found for the defendant. Such peremptory instruction comes from the bench and is afforded an aura of importance and credibility that the court should never intend to convey. See 8 DePaul Law Review 141, 143. This hind of instruction has been heartily condemned in the Illinois courts, but is often not found to be reversible error. The courts will only reverse on this ground where an undue number or an inordinate amount of these instructions have been given or it appears that the case of the opposing party has been severely compromised or misstated. See Scerrino v. Dunlap, 14 Ill App2d 355,
Appellants complain of defendants’ instruction 18 because it was modeled after instructions in the Allegretti case (supra). Appellants believe that to be error because under their reading of Allegretti the phrases “defect” and “assuming the supplier was otherwise properly handling the oil without negligence” were elements that are not present in this case. We have already pointed out that both of these phrases presented questions of fact upon which the jury should properly rule. A party is entitled to instructions on Ms theory of the case providing it correctly states the law of the matter. Sims v. Chicago Transit Authority, 7 Ill App2d 21,
Another error urged by the appellants is that copies of defendant’s oil burner service policy were improperly admitted into evidence. The Cohns had applied for a service policy but it was not in force at the time of the fire. The appellants contend that the exculpatory language of the policy improperly prejudiced the jury against the case of the plaintiffs. It appears to us that from the testimony no doubt could have existed in the jury’s mind that the Cohns did not own such a policy. Under the circumstances the admission of this evidence is not prejudicial.
The last error alleged by the appellants is that they were not allowed to develop by way of cross-examination the circumstances surrounding the negotiations for the Cohns’ purchase of the building and relative to the adjustment of the insurance loss. Although, a party is entitled to introduce any competent evidence to further a successful determination of the litigation, the court in its discretion may refuse to allow testimony on the grounds of irrelevancy. Here the testimony sought to be elicited was irrelevant and the court properly refused to admit it. We do not feel that the court abused its discretion in refusing the cross-examination desired.
From our study of the record of the case below and an examination of the particular errors raised in the brief of the appellants, we feel that the trial was carried on in a fair manner and that there is no substance to the objections urged by the appellants. For these reasons we affirm the judgment of the lower court.
Judgment affirmed.