| Ark. | Nov 11, 1905
(after stating the facts.) In the impaneling of the jury in the case the trial court refused'to allow the Waters-Pierce Oil Company to peremptorily challenge three jurors. The appellant insists that the court erred. But we do not think so. The statutes expressly provide in civil cases that “each party shall have three peremptory challenges;” and that where there are several persons on the same side] the challenge of one shall be the challenge of all. All the defendants are not entitled in the aggregate to more than three peremptory- challenges. The statutes do not provide that they shall; in any case, be entitled to more. Kirby’s Digest, § § 4534-4540.
During the progress of the trial the following questions were asked E. R. Russell, a witness, and answered by him, over the objections of the Waters-Pierce Oil Company: “Why did you (Oil Company) get that rotary pump?” He answered, “The one we (Oil Company) had there would not do.” He was then asked: “Had you and him (Humphrey, employee of Arkansas ■Gas Company) had any conversation about getting a rotary pump for the purpose of delivering this oil into this tank?” He answered: “He asked me if I had anything to empty this barrel with.” Plaintiff asked him: “State whether or not it is true that you got that pump for the purpose of delivering gasoline into this tank put in by Humphrey?” And he answered: “I don’t remember now whether we got it for that purpose or not.” There is no reason given in the answer to these questions for purchasing the rotary pump, except the one the Oil Company had would not do, and no opinion as to the relative merits of the siphon and the rotary pump was expressed. We' do not think that the testimony was prejudicial.
A witness was allowed to testify over the objections of the Oil Company as to an agreement of that Company with the Arkansas Gas Company to deliver gasoline into the tanks of the latter wherever its plants were used in this State, and wherever the former had an agent. This was for the purpose of showing that gasoline was dangerous, and required careful handling. This was an undisputed fact, and the testimony was not prejudicial.
The appellant says:
“The court also, erred in permitting counsel to ask John Humphrey about filling the tank on Saturday evening before; and to ask him what occurred there. He was asked: ‘Was Murray there?’ and answered: ‘Yes.’ He was also asked: ‘Did you undertake to empty that or put it into the tank ?’ and he answered: ‘Yes.’ He was then asked: ‘How?’ The court also permitted the plaintiff to ask this witness, and the latter to answer, questions as to the situation and condition of the tank and connections on the Saturday evening before the explosion, and where Murray was, and what he did. Witness, in answer to question, said:, ‘He (meaning Murray) came down and took the pipé out of my hands and undertook to siphon it.’ And he was asked: ‘What were you doing with the hose?’ and he answered: T just had my hands on the hose. Had the goose-neck stuck in that opening there, and he came down and grabbed hold of it, and as soon as I saw what he started to do I grabbed it away. Meanwhile I hallooed to the man above, and he had pulled the hose out of the tank/ He was then asked: ‘Did you say anything about the manner of filling that tank at that time, and how it should be filled; state to the jury?’ The witness answered: ‘When he undertook to siphon it after taking the nozzle out of the opening away from me, I saw what he was doing, I grabbed it away from him, and I got very angry aboht it, because I thought he knew better. I told him never to undertake to siphon gasoline out of one of those barrels into the storage tank. I told him he couldn’t control the flow; that he had his tank upon a high elevation, and it wasn’t safe to do it. I told him to do it no more. I told him it wasn’t safe at all; that he could not control the flow was the main thing. I knew that we could put it in there by the use of a rotary pump, and thought they were using it. I gave Murray instructions to use the rotary pump. Counsel then asked: ‘State what you said?’ and the witness answered: T thought he was using it; that’s how I come to tell him not to try and siphon it when he took it from me.’ He said: ‘The pump won’t work.’ I said: ‘Then we will not put any in there, but we will let the barrel stay on the sidewalk and let it remain there until Monday morning.’ I said: ' ‘We won’t fill it by siphon,’ and for him never to undertake to fill the tank that way because it wasn’t safe, because he couldn’t control the flow of gasoline. He was then asked: ‘Did you tell him how to fill it?’ and the witness answered: ‘With the rotary pump always, because he could control it; that the slower he pumped, the slower it would flow.’ Counsel asked: ‘Did you tell him to use anything else ?’ The witness answered:' ‘A metal funnel.’ This witness was asked: ‘Didn’t you mean by that that this was the only place by which it could get out if it went in at that pipe? To which he answered: ‘Yes.’” This testimony was inadmissible. But the effect of it was to show that the witness was of the opinion that the rotary pump was safer chan the siphon, because the flow of the gasoline in the former could be controlled, and it could not be in the latter, and'for this reason the former should be used. This was the only objection he urged against the use of the siphon. He testified to the same effect, and that he had tested the siphon,' and found it impracticable. This was competent. We think the incompetent testimony was not prejudicial.
Appellant complains because the court refused to instruct the jury to return a verdict in its favor. The court instructéd the jury as follows:
“The mere fact of an explosion, and that plaintiff was injured thereby, is not sufficient to warant a verdict against the AVatersPierce Oil Company. Before you can find a verdict against it, you may also find by a fair preponderance of the evidence that Murray was guilty of negligence in the manner in which he delivered the gasoline into the pipe in the receiving box, and that his negligence in so delivering it, without the intervention of any other independent agency, caused or contributed to the injury; and unless the plaintiff has established by a fair preponderance of the evidence each of these facts, your verdict must be for the defendant, AVaters-Pierce Oil Company.
“Even if you should believe from the evidence that Murray was guilty of negligence in the manner in which he delivered the gasoline into the pipe in the receiving box on Exchange street, still, you could not find against the defendant, AVaters-Pierce Oil Company, unless you could further find by a fair preponderance of the evidence that the gasoline, escaping because of his negligence, got down into the area and caused the explosion; and if the plaintiff has failed to establish either of these facts by a fair preponderance of the evidence, your verdict must be for the defendant, AVaters-Pierce Oil Company.”
“The jury are also instructed that if they believe and find from the evidence that either the defendant the Arkansas Gas Company, or the defendants Chambers & AValker, employed witness Harris to watch the open, upright pipe attached to the tank in question while gasoline was being poured into said tank through the receiving box and pipe by the witness Murray, and to observe whether the gasoline flowed out of said upright pipe; that as a matter of fact the gasoline which caused the explosion and resulted in injury to plaintiff did flow out of said upright pipe, without the knowledge of said Murray, while gasoline was being passed into said receiving box and pipe by the said Murray on the 24th day of December, 1902, and the said Harris negligently failed to observe the same, or,_ if he observed the same, failed to notify the said Murray in time to enable him to stop the flow of gasoline into said receiving box and pipe, and thereby prevent said overflow and resulting explosion, then the said Murray was not guilty of negligence, and you should find a verdict for the AVaters-Pierce Oil Company.”
Before the jury could have returned a verdict in favor of appellee, J. C. Burrows, against the appellant, Waters-Pierce Oil Company, according to these instructions, it was necessary for them to find that the stream of gasoline that ran over the granitoid pavement through the engine room on the premises leased by Chambers & Walker, known as the Turf Exchange, was caused by Murray transferring gasoline into the pipe in the receiving tank in a negligent and careless manner. They obviously so found, and there was evidence sufficient to sustain their verdict in this court. They So found under instructions given at the request of appellant, and it cannot legally complain in this court of the court’s refusal to instruct the jury to return a verdict in its favo*
Numerous instructions were given to the jury, and exceptions to many of them were saved.'
Instructions were asked by appellant and refused by the court. Construed as a whole,, as they should be, we find no reversible error in those given. .The instructions refused, so far as they are correct and were applicable, were included in instructions that were given.
Judgment affirmed.