CLARKSON, J., dissenting upon evidence stated in his opinion.
STACY, C. J., concurs in dissenting opinion.
This is an action to recover damages for the death of plaintiff's intestate, caused by an explosion in a filling station, owned by the defendant, B.R. Poole, and leased by him to the defendant, D. Henry Allen, who operated the same under the name of Allen's Service Station. The tanks in which gasoline was stored for sale at said filling station, and the pumps and equipment which were used in its operation, were installed by the defendant, Standard Oil Company of New Jersey, and owned by said company at the time of the explosion. The said tanks, pumps and equipment were subject to the inspection of the defendant, Standard Oil Company of New Jersey, and were frequently inspected by said company, in order to ascertain whether or not they were being properly used and were in good condition.
It is alleged in the complaint that the explosion which caused the death of plaintiff's intestate was the result of the negligence of the defendants, as specifically alleged therein. In the answers filed by the defendants, each defendant denied the allegations of the complaint which constitute the cause of action on which plaintiff seeks to recover.
At the close of the evidence introduced by the plaintiff, each of the defendants moved for judgment as of nonsuit. The motion of the defendant, B.R. Poole, was allowed, and the action was dismissed as to him. The motions of the other defendants were denied. No evidence was offered by either of these defendants.
The defendant, Standard Oil Company of New Jersey, excepted to the refusal of the court to allow its motion for judgment as of nonsuit, at the close of the evidence for the plaintiffs.
The said defendant also excepted to the refusal of the court to instruct the jury, as requested by said defendant, in writing and in apt time, that if the jury believed all the evidence, and found the facts to be as testified by all the witnesses, they should answer the first issue, "No," and the third issue, "Yes."
The issues submitted to the jury were answered as follows:
"1. Was the death of plaintiff's intestate caused by the negligence of the defendant, Standard Oil Company of New Jersey, as alleged in the complaints? Answer: Yes.
2. Was the death of plaintiff's intestate caused by the negligence of the defendant, D. Henry Allen, as alleged in the complaint? Answer: No.
3. Did the plaintiff's intestate, by his own negligence, contribute to his death? Answer: No.
4. Did the plaintiff's intestate assume the risk incidental to the employment in which he was engaged? Answer: No.
5. What amount, if any, is plaintiff entitled to recover of defendants? Answer: $5,000."
There was judgment that plaintiff recover nothing of the defendant, D. Henry Allen, and that the action be dismissed as to said defendant.
From judgment that plaintiff recover of the defendant, Standard Oil Company of New Jersey, the sum of $5,000, together with the costs of the action, the said defendant appealed to the Supreme Court.
At the date of his death, to wit, 29 September, 1928, plaintiff's intestate, Lynn Broughton, was employed by the defendant, D. Henry Allen, as a helper at a filling station located near the town of Garner, in Wake County, North Carolina. The filling station was owned by the defendant, B.R. Poole, and had been leased by him to the defendant, D. Henry Allen, who was operating it under the name of Allen's Service Station. The defendant, Standard Oil Company of New Jersey, owned the tanks in which gasoline was stored for sale at said filling station; it also owned the pumps and equipment which were used in its operation. This defendant had installed the said tanks, pumps and equipment, and from time to time, inspected the same for the purpose of ascertaining whether or not they were being properly used and were in good condition.
Between three and four o'clock on the morning of Saturday, 29 September, 1928, plaintiff's intestate was injured by an explosion which occurred in the filling station. His death resulted instantly from his injuries. He had gone on duty at about 7 o'clock on Friday evening, 28 September, 1928. He procured a substitute for a few hours that night, and was absent from the filling station until about 12 o'clock. During this time he attended a chatauqua in the town of Garner. After his return to the filling station, he resumed his work, and was engaged in the performance of his duties about the premises until about 1 o'clock. He then lay down on a cushion in the filling station and fell asleep. He had been drinking whiskey during the night, and was under its influence when he lay down and fell asleep. He and other employees of the defendant, D. Henry Allen, had been expressly forbidden to sleep at the filling station at night. Efforts of the manager of the filling station to awaken him after he fell asleep were unavailing. While he was asleep, there was a terrific explosion in the filling station resulting in injuries to plaintiff's intestate, from which he died almost instantly.
While plaintiff's intestate was asleep, between three and four o'clock, a customer came into the filling station. There was at this time an odor of gasoline, about the premises, which was quite noticeable. The manager of the filling station and the customer were the only persons present, except plaintiff's intestate. While they were looking for a key on the floor, the manager struck a match; a bluish flame immediately appeared along the floor over the basement of the filling station. This was followed by an explosion which wrecked the filling station. Both the manager and the customer escaped through the open doors of the filling station, without serious injury. Plaintiff's intestate was killed by the explosion. If he had been awake, he also could have escaped through the open doors of the filling station.
On Wednesday afternoon preceding the Saturday morning when the explosion which killed plaintiff's intestate occurred, employees of the defendant, D. Henry Allen, discovered that water and gasoline had accumulated in the basement of the filling station. A heavy rain had fallen during the day. After the rain, it was discovered that water and gasoline had accumulated in the basement to a depth of about five inches. There was a coating of gasoline on the water about three-fourths of an inch thick. Fumes from this gasoline were decidedly noticeable. Ditches were dug on Thursday, and the water and gasoline drained from the basement. These ditches were dug by employees of the defendant, D. Henry Allen. After the water and gasoline were drained from the basement, the basement was washed out by the use of a hose. Prior to this time, for at least six months, the basement of the filling
station had been dry and clean; there had been no gasoline or gasoline fumes in the basement. Plaintiff's intestate was at the filling station, when the water and gasoline were discovered in the basement, on Wednesday afternoon. He was also at the filling station on Thursday and Friday. He knew of the conditions in the basement on Wednesday afternoon, and knew that there had been fumes of gasoline about the filling station on Thursday and Friday.
One of the tanks installed by the defendant, Standard Oil Company of New Jersey, and owned by said company at the time of the explosion, had a capacity of 1,000 gallons. This tank was located about twenty feet from the basement of the filling station, in which water and gasoline were discovered on Wednesday afternoon preceding the explosion. Gasoline purchased from said defendant for sale at the filling station was stored in this tank.
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CLARKSON, J., dissenting upon evidence stated in his opinion.
STACY, C. J., concurs in dissenting opinion.
This is an action to recover damages for the death of plaintiff's intestate, caused by an explosion in a filling station, owned by the defendant, B.R. Poole, and leased by him to the defendant, D. Henry Allen, who operated the same under the name of Allen's Service Station. The tanks in which gasoline was stored for sale at said filling station, and the pumps and equipment which were used in its operation, were installed by the defendant, Standard Oil Company of New Jersey, and owned by said company at the time of the explosion. The said tanks, pumps and equipment were subject to the inspection of the defendant, Standard Oil Company of New Jersey, and were frequently inspected by said company, in order to ascertain whether or not they were being properly used and were in good condition.
It is alleged in the complaint that the explosion which caused the death of plaintiff's intestate was the result of the negligence of the defendants, as specifically alleged therein. In the answers filed by the defendants, each defendant denied the allegations of the complaint which constitute the cause of action on which plaintiff seeks to recover.
At the close of the evidence introduced by the plaintiff, each of the defendants moved for judgment as of nonsuit. The motion of the defendant, B.R. Poole, was allowed, and the action was dismissed as to him. The motions of the other defendants were denied. No evidence was offered by either of these defendants.
The defendant, Standard Oil Company of New Jersey, excepted to the refusal of the court to allow its motion for judgment as of nonsuit, at the close of the evidence for the plaintiffs.
The said defendant also excepted to the refusal of the court to instruct the jury, as requested by said defendant, in writing and in apt time, that if the jury believed all the evidence, and found the facts to be as testified by all the witnesses, they should answer the first issue, "No," and the third issue, "Yes."
The issues submitted to the jury were answered as follows:
"1. Was the death of plaintiff's intestate caused by the negligence of the defendant, Standard Oil Company of New Jersey, as alleged in the complaints? Answer: Yes.
2. Was the death of plaintiff's intestate caused by the negligence of the defendant, D. Henry Allen, as alleged in the complaint? Answer: No.
3. Did the plaintiff's intestate, by his own negligence, contribute to his death? Answer: No.
4. Did the plaintiff's intestate assume the risk incidental to the employment in which he was engaged? Answer: No.
5. What amount, if any, is plaintiff entitled to recover of defendants? Answer: $5,000."
There was judgment that plaintiff recover nothing of the defendant, D. Henry Allen, and that the action be dismissed as to said defendant.
From judgment that plaintiff recover of the defendant, Standard Oil Company of New Jersey, the sum of $5,000, together with the costs of the action, the said defendant appealed to the Supreme Court.
At the date of his death, to wit, 29 September, 1928, plaintiff's intestate, Lynn Broughton, was employed by the defendant, D. Henry Allen, as a helper at a filling station located near the town of Garner, in Wake County, North Carolina. The filling station was owned by the defendant, B.R. Poole, and had been leased by him to the defendant, D. Henry Allen, who was operating it under the name of Allen's Service Station. The defendant, Standard Oil Company of New Jersey, owned the tanks in which gasoline was stored for sale at said filling station; it also owned the pumps and equipment which were used in its operation. This defendant had installed the said tanks, pumps and equipment, and from time to time, inspected the same for the purpose of ascertaining whether or not they were being properly used and were in good condition.
Between three and four o'clock on the morning of Saturday, 29 September, 1928, plaintiff's intestate was injured by an explosion which occurred in the filling station. His death resulted instantly from his injuries. He had gone on duty at about 7 o'clock on Friday evening, 28 September, 1928. He procured a substitute for a few hours that night, and was absent from the filling station until about 12 o'clock. During this time he attended a chatauqua in the town of Garner. After his return to the filling station, he resumed his work, and was engaged in the performance of his duties about the premises until about 1 o'clock. He then lay down on a cushion in the filling station and fell asleep. He had been drinking whiskey during the night, and was under its influence when he lay down and fell asleep. He and other employees of the defendant, D. Henry Allen, had been expressly forbidden to sleep at the filling station at night. Efforts of the manager of the filling station to awaken him after he fell asleep were unavailing. While he was asleep, there was a terrific explosion in the filling station resulting in injuries to plaintiff's intestate, from which he died almost instantly.
While plaintiff's intestate was asleep, between three and four o'clock, a customer came into the filling station. There was at this time an odor of gasoline, about the premises, which was quite noticeable. The manager of the filling station and the customer were the only persons present, except plaintiff's intestate. While they were looking for a key on the floor, the manager struck a match; a bluish flame immediately appeared along the floor over the basement of the filling station. This was followed by an explosion which wrecked the filling station. Both the manager and the customer escaped through the open doors of the filling station, without serious injury. Plaintiff's intestate was killed by the explosion. If he had been awake, he also could have escaped through the open doors of the filling station.
On Wednesday afternoon preceding the Saturday morning when the explosion which killed plaintiff's intestate occurred, employees of the defendant, D. Henry Allen, discovered that water and gasoline had accumulated in the basement of the filling station. A heavy rain had fallen during the day. After the rain, it was discovered that water and gasoline had accumulated in the basement to a depth of about five inches. There was a coating of gasoline on the water about three-fourths of an inch thick. Fumes from this gasoline were decidedly noticeable. Ditches were dug on Thursday, and the water and gasoline drained from the basement. These ditches were dug by employees of the defendant, D. Henry Allen. After the water and gasoline were drained from the basement, the basement was washed out by the use of a hose. Prior to this time, for at least six months, the basement of the filling
station had been dry and clean; there had been no gasoline or gasoline fumes in the basement. Plaintiff's intestate was at the filling station, when the water and gasoline were discovered in the basement, on Wednesday afternoon. He was also at the filling station on Thursday and Friday. He knew of the conditions in the basement on Wednesday afternoon, and knew that there had been fumes of gasoline about the filling station on Thursday and Friday.
One of the tanks installed by the defendant, Standard Oil Company of New Jersey, and owned by said company at the time of the explosion, had a capacity of 1,000 gallons. This tank was located about twenty feet from the basement of the filling station, in which water and gasoline were discovered on Wednesday afternoon preceding the explosion. Gasoline purchased from said defendant for sale at the filling station was stored in this tank. It was buried in the ground, with its bottom on a level with the bottom of the basement. Gasoline was drawn from this tank by means of pumps and equipment which had been installed and which were owned by said defendant. The pumps and equipment were used by the operator of the filling station and his employees for drawing gasoline from the tank and delivering it to customers. Both the tank and the pumps and equipment used in the operation of the filling station were subject to inspection by the defendant, Standard Oil Company of New Jersey. There was no evidence tending to show that said company was notified at any time between Wednesday afternoon and Saturday morning that gasoline had been discovered in the basement, or that there were gasoline fumes about the filling station.
The answer of the jury to the fourth issue, involving the defense of assumption of risk by plaintiff's intestate, appearing in the record, is immaterial on this appeal. Plaintiff's intestate was not an employee of the defendant, Standard Oil Company of New Jersey, at the date of his death; he was an employee of the defendant, D. Henry Allen. This appeal is by the defendant, Standard Oil Company of New Jersey, against whom alone judgment was rendered by the Superior Court in favor of the plaintiff. There was judgment on the verdict that plaintiff recover nothing of the defendant, D. Henry Allen, the employer of plaintiff's intestate. There was no appeal from this judgment. As between the plaintiff and the defendant, Standard Oil Company of New Jersey, assumption of risk by plaintiff's intestate was not available as a defense in this action. There was no contractual relation between plaintiff's intestate and said defendant. Cobia v. R. R.,188 N.C. 487, 125 S.E. 18.
On its appeal to this Court the defendant, Standard Oil Company of New Jersey, contends that there was no evidence at the trial of this action tending to sustain the allegations of the complaint upon which
its liability to plaintiff is predicated, and that all the evidence introduced by plaintiff shows that his intestate, by his own negligence, contributed to his injuries and death, and that, therefore, there was error in the refusal of the trial court (1) to allow its motion, made at the close of all the evidence, for judgment as of nonsuit, and (2) to instruct the jury as requested by it with respect to the answers to the first and third issues. These are the only issues raised by the pleadings which are determinative of the right of plaintiff to recover of the defendant in this action.
The action is for the recovery of damages resulting from the death of plaintiff's intestate, caused by the negligence of the defendant. Negligence as the foundation of legal liability has been variously defined, but all the definitions by text-writers and by the courts involve the idea of want of due care under the circumstances. 45 C. J., 624. Judge Cooley in his work on Torts defines negligence as "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby some other person suffers injury." Cooley on Torts (3d ed.), pp. 1324, 1325. This definition has been adopted or quoted with approval in a large number of cases and characterized as the best definition of the term. SeeFisher v. New Bern, 140 N.C. 506, 53 S.E. 342, 111 Am. S. R., 857, 5 L.R.A., 542.
Plaintiff's right to recover and defendant's liability for damages in this action are both predicated upon allegations in the complaint of actionable negligence on the part of the defendant, first, in that defendant failed to exercise due care in the construction and installation of the tanks, pumps and equipment at the filling station, owned by the defendant, B.R. Poole, and operated by the defendant, D. Henry Allen, as lessee; and, second, in that defendant failed to exercise due care in the inspection of said tanks, pumps and equipment, after they had been constructed and installed. It is specifically alleged in the complaint that defendant's negligence in these two respects was the proximate cause of the death of plaintiff's intestate.
There was no evidence at the trial tending to show negligence on the part of the defendant in either respect. All the evidence introduced by the plaintiff shows that the tanks, pumps and equipment installed by the defendant for the storage and distribution of gasoline at the filling station, had been used by the successive operators of the filling station for more than a year without any evidence of leaks indicating defects therein.
There was evidence that gasoline was stored in the tanks and distributed by means of the pumps and equipment to customers of the filling station; that on Wednesday afternoon preceding the Saturday
morning when the explosion which caused the death of plaintiff's intestate occurred, there was a coating of gasoline on water in the basement of the filling station. Whether the gasoline in the basement had leaked from the tanks because of defects therein, or whether it had got into the basement because of improper use by the employees of the filling station of the pumps and equipment, is a matter altogether of speculation and conjecture. It is well settled that evidence which does no more than raise a suspicion, justifying, it may be, speculation and conjecture that a fact material to the cause of action alleged in the complaint, may be as alleged therein, is not sufficient for submission to the jury as tending to sustain the allegation of the complaint. Denny v. Snow, 199 N.C. 773, 155 S.E. 874;Smith v. Wharton, 199 N.C. 246, 154 S.E. 12; Byrd v. Express Co.,139 N.C. 273, 51 S.E. 851. In Masten v. Texas Oil Company, 194 N.C. 540,140 S.E. 89, it was held by this Court that evidence showing that water in a well located one hundred and thirty feet from a tank in which gasoline was stored, was polluted by gasoline, should have been submitted to the jury as tending to show that the gasoline in the well came from the tank. This, however, was in an action for damages resulting from the pollution of the water in plaintiff's well, and not for damages resulting from the negligence of the defendant, the owner of the tank. The distinction is, we think, apparent. In the action for the pollution of his well, all that the plaintiff was required to allege and prove was that his well was polluted by gasoline from the tank owned and maintained by the defendant. In the instant case, plaintiff was required not only to allege, but also to offer evidence tending to show that the presence of the gasoline in the basement of the filling station was the result of the failure of the defendant to exercise due care with respect to the tanks, pumps and equipment, which were installed and owned by the defendant, and subject to its inspection.
There was no evidence at the trial of the instant case tending to show that the defendant was notified or knew that gasoline had been discovered in the basement of the filling station on Wednesday afternoon, or that there were fumes from gasoline about the premises during Thursday and Friday. In the absence of such notice or knowledge, on the facts shown by all the evidence, it cannot be held that the failure of the defendant to inspect the tanks, pumps and equipment installed and owned by it, but in the possession of the operator of the filling station, between Wednesday afternoon and Saturday morning, was evidence of the want of due care on the part of defendant to inspect the same. Both the tanks and pumps and equipment, although owned by the defendant, were in the possession of the operator of the filling station. The defendant had the right and was under the duty to the operator of the
filling station and to its owner, by reason of its contract with them, to inspect the tanks, pumps and equipment, only for the purpose, however, of ascertaining whether or not they were being properly used and were in good condition. It does not appear from the evidence that defendant had any duty, contractual or otherwise, with respect to the repair of said tanks, pumps or equipment in the event defects therein were discovered by an inspection. It had no right and was under no duty with respect to the premises in and about the filling station as was the case with the defendant in Rushing v. Texas Co., 199 N.C. 173, 154 S.E. 1. For this reason the instant case is distinguishable from that case.
As we are of the opinion that there was no evidence at the trial of this action tending to show negligence on the part of the defendant, as alleged in the complaint, we need not discuss the question as to whether or not such negligence, if it had been shown by the evidence, was the proximate cause of the explosion which resulted in the death of plaintiff's intestate. All the evidence shows that there would have been no explosion, notwithstanding the presence of gasoline fumes in and about the filling station, if the manager had not struck the match immediately before the explosion. There was evidence tending to show that this was a negligent act on the part of the manager of the filling station, and that this act was the sole proximate cause of the explosion.
We are further of the opinion that all the evidence introduced by the plaintiff at the trial shows that the death of his intestate was the result of his failure to exercise due care for his own safety. In violation of the express orders of his employer, plaintiff's intestate went to sleep in the filling station, and thus failed to escape, as he could have done if he had been awake, when it was apparent that there would be an explosion caused by the striking of a match by the manager of the filling station. With knowledge of the presence of gasoline fumes in and about the filling station, as the result of the conditions in the basement on Wednesday afternoon, and continuing in some respects through Thursday and Friday, plaintiff's intestate went to work in the filling station on Friday night, while under the influence of whiskey. The plaintiff is and should be precluded from recovery in this action because the death of his intestate was caused by his own negligence.
For error in the refusal of the court to allow defendant's motion for judgment as of nonsuit, on the ground that there was no evidence tending to show that defendant was negligent, as alleged in the complaint, the judgment is reversed. The action is remanded to the Superior Court of Wake County, that judgment may be entered dismissing the action.
Reversed.