(after stating the facts). The main reliance of counsel for the defendant for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. In making this contention counsel insists that the court should have declared as a matter of law that the plaintiff was guilty of contributory negligence, and therefore not entitled to recover. This court has held that, in view of the highly dangerous character of gas and its tendency to escape, a gas com- " pany must use a degree of care to prevent the escape of gas from its pipes proportionate to the dangers which it is its duty to avoid, and that, if it fails to exercise this degree of care and injury results therefrom, the company is liable, provided the person suffering the injury, either in person or in property, is free from contributory negligence. Pulaski Gas Light Co. v. McClintock,
Gasoline becomes volatile when exposed to the air, and is easily ignited when it comes in contact with a flame. Therefore gasoline is also a highly dangerous substance, and the same rule applies to it as above stated with regard to gas. Waters-Pierce Oil Co. v. Knisel,
When the gasoline was drained from the tank of the plaintiff’s car and was allowed to flow on the concrete floor of the filling station, it became exposed to the oxygen of the air and formed a gaseous substance which was easily ignited when a flame was applied to it. The defendant should have drained the gasoline into a container, and not have allowed it to flow across the concrete floor of the filling station into the gutter of the street. This was a highly populous neighborhood, and the defendant should have anticipated that some one passing by might throw a lighted match into the gutter, which would ignite the vapor formed by the gasoline coming in contact with the air and thereby destroy the plaintiff’s automobile. Thus it will be seen that the negligence of the defendant was the proximate cause of the destruction of the plaintiff’s property.
This brings us to the question of the plaintiff’s contributory negligence' as a bar to his right to recover. This we regard as a very close question, but, under the circumstances, we do not think the court erred in refusing to declare as a matter of law that the plaintiff was-guilty of contributory negligence. In reaching this conclusion it must be remembered that the jury were the judges of the credibility of the witnesses, and had a right to view the evidence in the light most favorable to the plaintiff, if they believed that he was telling the truth about the matter. St. Louis Southwestern Ry. Co. v. Ellenwood,
The next assignment of error is that the court erred in giving instruction No. 2, which reads as follows: “If you find that the defendant was negligent and that, by virtue of such negligence, the plaintiff’s automobile was destroyed, then you must find for the plaintiff, unless you find that the plaintiff was himself negligent and that his negligence contributed to the cause of the damage. ’ ’
At the request of the defendant the court instructed the jury that, before the plaintiff was entitled to recover, he must prove every material allegation of the complaint by a preponderance of the evidence. Under the allegations of the complaint the negligence of the defendant was substantially as established by plaintiff’s own testimony. Hence, if counsel for the defendant thought that the instruction now complained of did not limit the jury to a consideration of such acts of negligence as might have been the proximate cause of the destruction of the automobile, a specific objection should have been made to the instruction. Not having made a specific objection and pointed out wherein it was objectionable, the defendant is not now in an attitude to complain of the action of the court in giving the instruction. Pine Bluff & A. R. Ry. Co. v. Washington,
It follows that the judgment was correct, and will therefore be affirmed.