113 N.W. 1025 | N.D. | 1907
On February 6, 1906, plaintiff recovered a judgment against the defendant in the district court of Ward county in the sum of $8,023 for alleged negligence in selling to plaintiff a gallon of kerosene oil containing a small quantity of gasoline, which
Plaintiff’s cause of action is predicated upon the negligent and unlawful conduct of defendant in selling what plaintiff had a right to assume was standard kerosene, when the same contained a mixture of kerosene and gasoline; the evidence showing that the mixture contained eight parts of standard kerosene and one part gasoline. The defendant is clearly liable, under all the authorities, for the injury caused by the explosion, provided the proof shows that the proximate or efficient cause of such explosion was the presence of the gasoline in the oil, and that plaintiff did not by his culpable negligence directly contribute to such injuries, We therefore start with the assumption, which we think is too plain for discussion, that defendant was guilty of gross negligence as a matter of law in placing this mixture upon the market for sale to his customers, especially without acquainting them of its true character. It does not follow, however, that this negligence on defendant’s part was actionable unless it affirmatively appears that it operated to cause injury to some one; and the person asserting that it did cause injury has, of course, the burden of showing such fact, Waters-Pierce, etc., Oil Co. v. Deselms (Okl.) 89 Pac. 212. Applying this rule to the case before us, the burden was upon plaintiff to .establish by a fair preponderance of the evidence that this explosion and consequent injury would not have happened under the facts in this case had it not been for the presence of the gasoline in the oil. Plaintiff concedes this burden to be upon him, but he most vigorously contends that the trial court under the state of the proof, was justified in submitting this question to the jury. Even if this contention were sound, we would be unable to see how the instruction of the trial court upon this issue could be upheld. Question 28 of the special verdict embodied this issue as follows: “Would an explosion have resulted in the oil can if tne oil poured by plaintiff the second time in his stove had been kerosene oil of standard test, when measured by flash test at 120 degrees Fahrenheit?” The burden was upon the plaintiff to estab
Whether plaintiff’s contention that there was sufficient evidence to warrant -the submission of the case to the jury upon the question as to the presence of the gasoline in the oil being the proximate cause of the explosion is sound, it is unnecessary for us to determine, as we are fully convinced that plaintiff’s own voluntary and reckless conduct as detailed by his own testimony stands as an insurmountable barrier to his recovery in this action; and, while we regret that defendant is to escape all liability for his gross misconduct, we consider it our plain duty, under the facts, to hold against the plaintiff. In narrating the facts immediately connected with the explosion, plaintiff testified: “I went in the shop on the morning of December 9, 1902, I think about 10 or 11 o’clock in the forenoon, and had some work to do there, so I went- to the stove and opened it, and I saw some unburned coal in the stove, shw it was black, and I supposed the fire was out, so I thought if I would put some oil on this coal I could light it, and I took the oil can and started to pour oil in, and the fire • flashed up and started to burn, and that surprised me and I hesitated, straightened the can up and held it back for an instant, so then I thought it was blazing. I thought it was safe, and I started to pour, and when I started the second time the can exploded. After I had opened these doors I saw there was no fire in view, so I took the can and poured some oil on it. Q. What precautions did you take besides looking into the stove to see if there was any fire there or not. A. None in particular, except the door was cold
We have been unable to find any adjudicated case, and none has been cited by counsel for respondent, which has upheld a recovery
Respondent cites, as sustaining his contention that it was a question for the jury as to whether he was in the exercise of due care, the following cases: Milling Co. v. Firstbrook (Colo.) 86 Pac. 313; Fernandes v. Sacramento City Ry., 52 Cal. 45; Schubert v. Clarke, 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Fuchs v. St. Louis, 133 Mo. 168, 31 S. W. 115, 34 S. W. 508, 34 L. R. A. 118; Hourigan v. Nowell, 110 Mass. 470; Siemers v. Eisen, 54 Cal. 419; Clements v. Electric Light Co., 44 La. Ann. 692, 11 South. 151, 16 L. R. A. 43, 32 Am. St. Rep. 348; Jennie Ives v. Weldon, 114 Iowa, 476, 87 N. W. 408, 54 L. R. A. 854, 89 Am. St. Rep. 379; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N. W. 227. We have examined each of these cases, and none of them throws any light upon the question here involved. The case in 110 Mass. 470, principally relied upon, does not contain a statement as to how the explosion occurred or what the plaintiff’s conduct, was. In none of the cases, so far as we recollect, was the question of plaintiff’s contributory negligence or the question as to whether there was sufficient evidence to require a submission of the case to the jury, involved.
But respondent relies upon the testimony of the witness Bed-ford, an expert chemist, as showing that an explosion would not
We have considered respondent’s contention that the doctrine of contributory negligence has no proper application to the facts of this case. He contends that the defendant was guilty of a willful wrong which resulted in plaintiff’s injuries. It is true that he knowingly sold this mixture, and thereby willfully violated the law of this state which, in effect, provides that kerosene oil shall not be sold until it has been tested and shown that it will not flash below 120 degrees Fahrenheit. But the complaint as amended is not framed upon the theory of a recovery for a willful injury, but the plaintiff seeks to recover on account of the defendant’s negligent act in selling the oil, knowing that it contained gasoline. It is nowhere claimed that the defendant did this with the willful intent of injuring the plaintiff. Therefore the general rule that contributory negligence has no application in cases where the injury is inflicted by the willful act or omission of the defendant does not apply. As stated in 7 Am. & Eng. Enc. Law, 443: “Willfulness and negligence are the opposites of each other; the one signifying the presence of intention or purpose, the other its absence. This distinction has not always been observed. Consequently there are cases that use the terms 'gross’ or 'willful’ negligence to designate willful injuries. Late cases have made the distinction clear. And the principle of the responsibility of the willful wrongdoer for all the consequences of his misconduct is really an old one.” We think no authorities can be found holding that contributory negligence is not a defense under the facts in this case.
For the foregoing reasons, the judgment of the district court is reversed, ánd that court directed to enter judgment in appellant’s favor, dismissing the action.