Judges： Higgins
Filed Date： 6/2/1965
Status： Precedential
Modified Date： 11/11/2024
The plaintiff’s allegations and evidence were sufficient to go to the jury on the issue of defendant’s negligent failure to inspect and service the tobacco curing equipment after filling the tank with liquid petroleum gas and before the plaintiff began curing operations. The distributor who undertakes the inspection must exercise a degree of care commensurate with the known hazard involved in the use of his product. Skelly Oil Co. v. Holloway, 171 Fed. 2d 670, 17 A.L.R. 2d 890, anno.; Frazier v. Gas Co., 247 N.C. 256, 100 S.E. 2d 501; Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E. 2d 689. The nonsuit in this case can not rest on the failure of the plaintiff to allege negligence and to offer proof sufficient for jury consideration that the defendant had failed to discharge its duty to service and inspect the equipment. Hence, in order to sustain the judgment, the plaintiff’s contribu
The plaintiff, age 50, testified he had been curing tobacco with petroleum gas burning equipment for years. “So far as I know, you can not operate one until you get a certificate of operation from the Department of Agriculture. I had a bam certificate that gas was installed properly. ... A drawing of the equipment showing installation and operating instructions, a copy of which was duly posted at the tobacco barn . . . The last sentence of the instructions says, do not try to make adjustments on the control yourself, and it says for service call Fair-mont Gas Company, MA 8-5641. Fairmont Gas Company furnishes service and advice. When I found out it was not working I took an hour off and did not call . . . and ask them to come.”
The equipment consisted of a 1,000-gallon tank located 20 feet from the barn. A one-inch pipe entered the bam at or near ground level. There was a cutoff valve at the tank. Inside the barn there was a control unit from which smaller pipes branched out to four rows of burners, three burners to the row. These were distributed throughout the floor.
On the day of his injury the plaintiff began his curing operations by .first opening the valve at the tank permitting the gas to enter the control unit inside the barn. The pilot light operated, showing gas was flowing from the tank. Then, in succession, he lighted the burners which, after burning momentarily, each in turn hissed, sputtered, flickered, and went out. After relighting the units they again sputtered and went out. After it ceased to burn, “something was spraying out of the .little yellow burners. ... It was water.”
After cutting off the valves at the tank, at the control unit, and at the burners, the plaintiff went home and in about 40 minutes to an hour, returned. Here is the story as to what he did in his own words: “I got a wrench and came on back to the barn. ... I was gone from the barn to the house for about forty minutes. When I got back to the barn, my father and I went in. He had a flashlight, and I left the front door about half-open.
“There is a small plug that screws in the end of each of the four pipes which constitute the four rows of burners. It is a small plug that screws in the end of the pipe. . . . My father held the light on the little plug and I took it out. A little bit of water came out, so I left little plug laying right there. I went to the next one and did the same thing and a little bit of water came. I went to the next one, did the same thing; then stayed there a few minutes and went back and mashed the little red button, and it didn’t do anything; I heard it say, ‘s-s-s-s,’
The plaintiff, in careless violation of rules and posted notices, and in utter disregard of his own safety, made adjustments with a wrench by opening the valves and draining the contents from the pipes onto the floor of the barn. He then opened the valves between the tank and the burners, struck a match over the condensate which had drained from the pipes and which he said he thought was water. The condensate exploded and the plaintiff received serious burns. The plaintiff had no right to assume that he had drained nothing but water out of a pipe that was connected with a tank containing 1,000 gallons of liquid petroleum gas. It would be difficult to conceive of conduct more likely to result in injury. The plaintiff’s contributory negligence, according to his own evidence, appears as a matter of law. The judgment dismissing the action is
Affirmed.