105 S.E. 433 | N.C. | 1920
The plaintiff sued to recover damages for injuries sustained from an explosion on defendant's premises, in the city of Greensboro, on 3 May, 1919, it being the same explosion described in Stone v. The Texas Co., decided at this term. Nearly all of the questions now raised were passed upon in that case, the only practical difference between the two cases being that there was evidence in this case that defendant had applied for and obtained a license to conduct business at its plant in the city.
The jury rendered a verdict for the plaintiff, assessing her damages at $3,000. Judgment thereon, and defendant appealed. after stating the case: We will consider the assignments of error in the order of their statement in the record. *563
The first and third assignments, to the refusal of a nonsuit, are overruled, as there was sufficient evidence for the jury to consider as to defendant's negligence. Assignment No. 2 is untenable, as the postcard received the day after the explosion, containing the words, "New Year's eve, then the explosion," was incompetent, hearsay, and irrelevant, and no part of the res gestae. The judge properly excluded it. The court gave the instruction set forth in the fourth assignment, so far as it was proper that it should be given. There was evidence for the jury to consider that the ordinance of the city had been violated. But the plaintiff has more reason for an objection to the charge in this respect than has the defendant, as it was less favorable to her than it should have been.
The court substantially gave the instruction set forth in the fifth assignment of error. The court could not have given the instruction in the sixth and seventh assignments of error without passing upon the evidence, and usurping the function of the jury, and, in one respect, without withdrawing a material portion of the relevant evidence from the jury. The eighth assignment is substantially the same as the two in regard to the motion for a nonsuit, and must share their fate.
The first and second exceptions to the instructions, as set forth in assignments nine and ten, were properly overruled. The explosion was an admitted fact, and should have been considered along with the other evidence. The plaintiff could not have made a beginning in the development of her case without this fact being considered. The court was only reciting the facts and circumstances, which were competent to be considered by the jury on the question of negligence. In other words, he was concatenating such facts, and not confining the jury to any one fact. He had a perfect right to tell the jury what evidence was relevant to the issues, if he did not give an opinion, as to whether the facts were fully or sufficiently proven, or intimate his opinion upon the weight of the evidence, but he is required "to state in a plain and correct manner the evidence in the case, and declare and explain the law arising thereon." Rev., 535. It is not an expression of opinion merely to array the testimony in the case in a proper manner, and to instruct the jury as to what is and what is not evidence.
If the defendant, by its negligence, produced a situation or condition of danger by allowing gasoline to escape from its warehouse and run down a street, where it would probably come in contact with fire, sparks from a passing engine or live ashes from a lighted cigar or cigarette dropped by a passerby, and the explosion was caused thereby, we do not see why this would not be negligence as much so as the act of a railroad company in permitting a spark to escape from a defective smokestack and fall on adjoining property, thereby injuring or destroying it. If *564
the negligence of the defendant, combined with the act of some other person, and proximately injured the plaintiff, the defendant would be liable, though he had no connection with the conduct of the third party, and no control over him. This was held to be the law in Grand Trunk Rwy.Co. v. Cummings,
Assignments twelve, thirteen, fourteen, and fifteen, relating to the ordinances, cannot be sustained. The court properly construed the ordinances, and the instruction attacked in the fifteenth assignment was more favorable to the defendant than it should have been, as the violation of a statute, or an ordinance, is negligence per se, or rather, to speak more accurately, it is itself a distinct wrong in law, and all that is needed to make it an actionable wrong is the essential element of proximate cause, for "wrong and damage" constitute a good cause of action if there be a causal connection between them. That the violation of a statute, or ordinance of a city or town, is negligence per se, or a distinct wrong in law, is the rule established by the more recent cases. Leathers v. TobaccoCo.,
The maxim res ipsa loquitur was considered in Stone's case, supra, but was not applied strictly by the judge in his charge to the jury. The defendant is contending in these cases that, while it had employed no watchman to guard its premises (which we say was the prudent course to have adopted), it had carried on its business for many years, and up to the time of the explosion, in practically the same way, using care to prevent the escape of gasoline and kerosene, and no accident had occurred. Does not this very contention make the rule, res ipsa loquitur apply here? If care had heretofore prevented injury, the jury might well infer that the continued use of care would likewise have done so, and that what did occur was due to its absence. But with a plant equipped with proper appliances for safety, gasoline should not have escaped, with the use of ordinary care, as it could get out of its container only through some opening. So that defendant is reduced to this dilemma, either it did not have proper safety appliances to prevent the escape of gasoline, or, if it did have them, they were not kept in proper condition, or some one of its employees negligently (or thoughtlessly, which is the same thing) left them open. If the spigots were closed, the contents of the drum, or tank, or whatever else was used for storing the gasoline, could not get out unless the containers themselves were defective, *566 which the defendant will be slow to admit. We do not say that these are the true or necessary inferences from the evidence, but that the jury were at liberty to draw them, and well warranted in doing so, not alone, perhaps, from the accident itself, from it and all the attendant circumstances. We do not perceive, though, how the defendant could have expected, or how it could have had a well-founded hope that the jury would find otherwise than they did.
The license would not protect the defendant against the violation of the ordinance itself, treating Nos. 12 and 13 as one enactment, as the board issuing it was not clothed with authority to license its violation. The defendant did not construct its plant as provided in the ordinance, and it committed acts expressly prohibited by it. Whether its acts of omission or commission were the proximate cause of the injury to the plaintiff was a question for the jury, which has been decided against the defendant, under evidence from which such a conclusion could legitimately be deduced. There was the gasoline (identified by the witnesses by its peculiar odor) flowing from the plant, or warehouse, down the street to and under the railroad, with several tracks and many engines passing and repassing directly over it, and one train passing just before the explosion, so close to the time when it occurred that the glass was shattered in the car windows. This exposed the highly volatile vapors, which were generated by contact with the air, to the very thing needed for the terrific explosion which followed. It was not necessary that any one should have seen sparks from the engine actually fall upon this stream of gasoline, as we have so often held in the cases where railroads have been held liable for causing fires in precisely the same way. Deppe v. R. R.,
The most reasonable and probable solution of this case is that one of the defendant's employees, who was there the evening before the explosion occurred, carelessly left an opening in one of the tanks, or containers, from which the gasoline flowed from its warehouse into the street. There was circumstantial evidence to warrant such a conclusion. Defendant had possession, control, and management of its plant, and should have superior knowledge as to its condition to any one else. It has not given any satisfactory explanation of how the gasoline got into the street, and the plaintiff was left, as her last resort, to circumstantial evidence for the purpose of showing that the cause of it was attributable to the defendant. In numerous cases we have held that when a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. Defendant replies to this that the thing which caused the injury was not under its management, but is that the fact, as the gasoline, which caused the explosion in conjunction with the fire, regardless of the source from which the latter came, was under its control and management, and it would have remained harmless if it had been properly stored, or watched and controlled. The defendant cannot, upon the evidence in the case, escape the full operation of this principle. Stewart v. Carpet Co.,
The case was correctly tried under the guidance of the able and learned judge who presided at the hearing.
No error.