Grigsby & Co. v. Bratton , 128 Tenn. 597 ( 1913 )

Mb. Justice Williams

delivered the opinion of the Court.

This cause was tried by the circuit judge, without the intervention of a jury, and his findings of fact were reduced to writing pursuant to the request of defendant below, Thomas Grigsby, who, as sole owner, conducted a drug store in Lebanon under the name style of Grigsby & Co.

From this finding it appears that plaintiff’s (Brat-ton’s) automobile was by his direction taken by his son, Clyde Bratton, aged about seventeen years, to the defendant’s drug store to be replenished with gasoline. The machine was driven to a point in the street in front of the store at or about dark. Young Bratton .had theretofore taken this and other machines to this store for the same purpose.

When the machine was so stopped and an order for gasoline given and accepted, Clyde Bratton turned down to some extent the light of a lamp (attached at the rear end of the automobile) becausé, as he explains, the light was high. He later turned away from the machine and walked to the pavement to talk with some boys.

The tank that carried gasoline for consumption by the machine was cylindrical in form, and was placed in the rear of the body and over the lamp referred to. At the center of the top of the tank was a hole for the inponr of gasoline, covered by a filler cap. The distance from this cap to the topi of the lamp was 24 inches. The lamp had two glass sides, but its side next to the store was of metal, so that its light did not show in that direction.

Bass, a drug clerk of defendant, approached the machine carrying a five-gallon can filled with gasoline. He did not see or notice that the light was yet burning at the lamp. The can used was of tin, incased in a wooden jacket, with a round mouth in the center of the top, which top was cone shaped. Handles were on the side of the wooden jacket, and by one of these the can was carried to the machine. The can was one used by wholesale dealers in shipping oil, and not a receptacle in which gasoline was shipped to defendant. The clerk placed a funnel in the mouth of the tank, lifted the can gently, placing .its projecting mouth just over the rim of the funnel. After a gallon of gasoline had been poured, ignition and injury to the machine occurred.

The custom at this place of business was for the driver of the machine to remove the filler cap. The proof does not show who in fact removed it on this occasion.

The circuit judge found that the fire and resulting injury to the automobile sued for resulted from the handling and pouring of the gasoline, either from spilling gasoline, with the result .that it came in contact with the fire of the lamp, or from fumes diffusing, and .that the weight of the evidence was in favor of the former as the cause; that the gasoline was spilled unconsciously; that the injury was due to the handling of the can and the natural tendency of the liquid to run from the round-rimmed mouth of a can when full on its being tilted at elbow height, which was approximately the height of the funnel.

Prom the facts found, the circuit judge drew the conclusion of law that there was actionable negligence on the part of defendant through Bass, and rendered judgment accordingly. Defendant appealed.

'The court of civil appeals held that there was a reasonable inference of negligence on the part of defendant from the pouring of the gasoline from the' can that was used, and ruled in affirmance. Petition for certiorari has been filed by defendant to bring this judgment under review by this court.

If we assume, without deciding, what might be a subject of serious, dispute, negligence on the part of defendant on the ground that the can was overfilled, or was not a fit one, in that its projecting mouth did not extend far enough beyond the edge of the funnel for safe pouring, he being unaware of the light’s burning, we have yet to consider a question not commented on by either the lower court or the court of civil appeals: Was plaintiff’s son and agent himself guilty of negligence which proximately contributed to the injury?

We are of opinion that fair inferences deducible from the facts found are: That, in the absence of proof as to who did it, the filler cap must be taken to have been removed by Clyde Bratton rather than by Bass. This, either under the custom proven,- or under tlie rule as to tlie burden of proof. That, when this cap was removed, and the lamp light was lowered by plaintiff’s son, thus diminishing its power as a potential warning to the drug clerk, to whom the light then was not obvious because of the lamp’s metal side, the clerk had a right to assume that the automobile had been by its driver placed in condition to receive the charge of gasoline. It does not appear that the customary mode of filling the tank, as respects the can or maimer of pouring, was departed from, or that accidents had-occurred prior to this.

The light should have been extinguished, but, from the facts found, plaintiff has not shown this to have been incumbent on defendant. The inference from young Bratton’s acts in lowering it, and then pre-sumedly removing the filler cap is in favor of defendant.

We are unable to see that the negligence of defendant, so assumed, intervened between the negligence attributable to the plaintiff and the accident as the sole proximate cause of the injury. Negligence is so attributable to the plaintiff in his son’s merely lowering the light, removing the top-, and walking away from the machine to talk to other boys without any explanation being made by him to Bass that the machine had not been put in readiness for the filling of" its tank.

The contention before us to excuse plaintiff from contributory negligence is to the effect that plaintiff’s negligence preceded and had expended itself before defendant’s neglig’ence intervened, and' was not continuous to the instant of the accident, and therefore is not to be conceived of as proximately contributory.

The light was left burning to that instant, and the driver of the machine was yet without cause away from the machine. But for one or both of these facts, the accident would not have happened.

If, notwithstanding defendant’s fault, plaintiff’s negligence so continued and contributed to the accident, then either the negligence of the parties was concurrent, or else the plaintiff himáelf is to be held as having had the opportunity of avoiding the injury, and his contribution is, in either event, not remote in the chain of causation. Barr v. Railroad, 105 Tenn., 545, 58 S. W., 849; Seith v. Commonwealth Co., 241 Ill., 252, 259; 89 N. E., 425, 24 L. R. A. (N. S.), 978, 132 Am. St. Rep., 204, 208; Railroad v. Roe, 118 Tenn., 601, 609, 102 S. W., 343.

What is meant by “proximate cause” is not necessarily that which is next or last in time or place, but that which is a procuring, efficient, and predominant cause. Closeness in causal relation, rather, is the meaning. Notes to Gilson v. Delaware, etc., Canal Co., 36 Am. St. Rep., 811; Barr v. Railroad, supra; Rosenbaum v. Shoffner, 98 Tenn., 630, 40 S. W., 1086, and cases cited; 13 Am. & Eng. L. (2 Ed.), 490; 7 Am. & Eng. L. (2 Ed.), 376; 29 Cyc., 491-499.

Assuming that defendant was negligent, we are of opinion that plaintiff’s negligence continued to operate concurrently at the moment of the accident in producing it; that there was no independent, self-supporting act of defendant 'that solely caused the injury, or so came into operation as to make plaintiff’s negligence remote. The negligence acts of plaintiff, outlined above, tended to make and keep the clerk unaware of the dangerous situation and probable consequences that confronted him. In the findings of fact there is embodied nothing that indicates knowledge of plaintiff’s precedent negligence on the part of Bass from which indifference to defendant’s rights could be inferred. Railroad v. Roe, supra.

Where the plaintiff and defendant are thus'guilty of acts of negligence which together constitute the proximate cause of the injury, then the negligence of plaintiff, however slight, bars a' recovery. Railway v. Haynes, 112 Tenn., 715, 81 S. W., 374, Traction Co. v. Brown, 115 Tenn., 325, 89 S. W., 319.

The writ of certiorari is granted, and the judgment reversed. Judgment here for defendant, Grigsby, with costs in his behalf.