DocketNumber： 2266
Judges： Blume, Kimball, Riner
Filed Date： 3/7/1944
Status： Precedential
Modified Date： 10/19/2024
On May 30, 1941, plaintiff owned and operated a Bentonite Plant at Newcastle, Wyoming. The plant consisted of a building about 105 feet long, 75 feet wide and 45 feet high at its highest point, in which were housed all the machinery, equipment, power plant and other apparatus for the processing of Bentonite. The building was constructed of lumber and corrugated iron. The floor under the fuel tank and most of the the drier was of cement, the remainder of lumber. In the refining and milling of Bentonite it is necessary to eliminate the moisture and for this purpose the plaintiff used a revolving drier, circular in shape, about 40 feet long and 42 inches in diameter. The Bentonite was fed into one end and at the other end was a fire burner and chamber. Fuel oil was used for the purpose of heating the drier. This oil was stored in, what is called in the record, a fuel tank with a capacity of 1000 gallons. This tank was located in the building supported by steel supports, set in concrete. It was about 4 feet higher than the drier and one-half of it extending over one end of the drier. The oil was fed to the drier by a gravity pipe line extending, with elbows in it, from the tank to the drier. The oil was atomized with air from a boiler located below the burner, forcing the oil into the furnace which was inside the drier where the oil was ignited. Fuel oil *Page 84 was delivered into the fuel tank from the outside of the building through a pipe 2 inches in diameter, extending from the top of the fuel tank to the outside so that a truck loaded with fuel oil could back up against the building, hook a hose onto the pipe and by a pump force the oil through the hose and pipe and thus into the fuel tank. A valve in the pipe was located about 3 feet from the top, which, when shut off, prevented oil from entering the fuel tank.
On May 29, 1941, the plaintiff ordered 15 barrels of fuel oil from the defendant. The oil was delivered the following day about noon by one Millhouse, an employee of the defendant. He backed his truck up against the building, hooked the hose of the truck to the supply line leading to the fuel tank of the plaintiff, turned on a pump by reason of which the fuel oil from the truck was forced into the fuel tank. He forced such an amount of fuel oil into the fuel tank that, as shown by some of the witnesses, it overran, the fuel oil spilling onto the drier. Instantly a fire spread throughout the building and within the course of about a half hour destroyed the plant of the plaintiff. In its amended petition, plaintiff pleaded the delivery of the oil by Millhouse without notifying the plaintiff; that while such delivery was being made Millhouse came into the plant to get an invoice of the oil receipted, stating that he did not know how much oil he had on his truck; that he was cautioned not to run the fuel tank over; that Millhouse then was starting to check the amount of oil in
the fuel tank. At that moment the fire occurred. The plaintiff charged that the destruction of the plant and the damage to the plaintiff was proximately caused by the negligence and gross carelessness of the defendant in the following particulars, to-wit:
"The failure of the defendant to notify plaintiff before it commenced to unload the fuel oil and residue *Page 85 from the tank truck of the defendant into the pipe line and drier tank of plaintiff's plant, causing said drier tank to overflow and become ignited by coming in contact with the heat and flame from the drier, totally demolishing and destroying said building and its entire contents;
"The furnishing to plaintiff by defendant of fuel oil or residue having a lower flashing point and containing more gas content than is safe to use and commonly sold in the trade for fuel purposes, so that it flashed and caught fire, destroying and demolishing said building of plaintiff and the entire contents thereof;
"The failure of the defendant to know the exact amount of fuel that was being unloaded from defendant's truck to the plant of plaintiff and placing in the tank supplying the drier with more fuel oil than was ordered by plaintiff and in excess of the capacity of said tank at the time, causing said tank to overflow and the escaping oil to catch on fire and destroy the property of plaintiff, as hereinabove set forth;
"The carelessness and negligence of defendant in overflowing the tank supplying said drier with fuel so that fuel oil escaped from said tank, came in contact with the heat and flame from the drier, caught on fire and destroyed the property of plaintiff as hereinabove set forth; wholly without any fault on the part of plaintiff."
The defendant in its answer admitted the corporate capacity of both plaintiff and defendant, generally denied the allegations of the amended petition, stated that the plant was in the exclusive control of the plaintiff, and then alleged in paragraph 4 of the Answer, as follows:
"This defendant further states that on the 29th day of May, 1941, the plaintiff herein directed this defendant to deliver to its manufacturing establishment, the next morning, fifteen barrels of fuel oil. That no special directions for the delivery were made. That this defendant had been supplying the plaintiff with fuel oil, upon its order, for some time previous to *Page 86 the said date and that the plaintiff knew the manner in which said oil was delivered, the method of delivering the said oil, furnished all the appliances and receptacles for delivering and receiving the said oil except the tank and hose connected therewith used by the defendant for conveying the said oil to the plaintiff for receiving the said oil. That it was no part of the duties of the defendant to consult with the plaintiff regarding the said delivery or to do anything except to deliver the oil ordered and to get a receipt for the same. That the delivery of the said fuel oil to the plaintiff on the said 30th day of May, 1941, was made in the same manner and with the same appliances it had always used for said purpose. That during or after said delivery the plaintiff receipted for said oil, received the same without protest and in the same manner that the oil had been previously received in former deliveries."
Defendant further alleged that the plaintiff was guilty of contributory negligence in this, namely: "That the plaintiff so constructed and placed the fuel tank owned by it and from which the oil therein contained was delivered to the fire in or near the drier described in plaintiff's amended petition that a leak in the said tank would permit the oil therein contained to drop upon the fire or near thereto and become ignited. That further the plaintiff wholly neglected and failed to safeguard the said tank and its contents from said fire box or furnace and wholly failed to properly measure and determine the amount of fuel oil that the said tank would contain, if the said fire was caused by an overflow of oil as stated in said petition, and negligently and carelessly neglected to inform this defendant of the correct amount to be delivered to it." Defendant further pleaded that the person delivering the oil to plaintiff did not in any manner attempt to determine the amount of oil in the fuel tank and had nothing to do with the fuel oil after it left the truck of the defendant. *Page 87
Plaintiff in its reply denied generally the affirmative allegations of the defendant, including contributory negligence, and in reply to paragraph 4 of the defendant's answer pleaded that: "It had been customary and the regular, safe and necessary practice of the defendant to have the driver of defendant's truck, from which deliveries of fuel oil were made to plaintiff's plant, to check jointly with one of the plaintiff's men, the tank in which said fuel oil was to be delivered, measuring said tank * * *; that said procedure was always required by plaintiff" for various reasons set forth; that defendant knew that it was dealing with a dangerous material and owed plaintiff a commensurate duty; that defendant did not use ordinary prudence, especially in view of the fact that the driver did not know the amount of fuel oil he had on his truck when he delivered fuel oil to plaintiff on May 30, 1941.
Counsel for the defendant argue that the verdict and judgment are not sustained by substantial testimony, and that hence the motions made by defendant should have been sustained. No question is raised, however, as to the amount of damages if the plaintiff is entitled to recover herein. We shall not undertake to answer all the arguments advanced by appellant, or all the conclusions drawn by its counsel. We must content ourselves by considering the main points raised herein.
Counsel for the defendant assert that the defendant delivered to plaintiff the fuel oil which had been ordered by the latter and who accordingly cannot complain. We think, however, that the jury were justified in finding contrary to this assertion. In order to make that clear we shall refer to the main points in the testimony in that connection. The witness Culver testified on behalf of the defendant that prior to July, 1940, the defendant sold to the plaintiff and to the trade generally from its tank No. 1 what is called top crude oil, or topping oil, which contains gasoline; that defendant built and operated a cracking plant since the *Page 92 last mentioned date; that by the cracking process approximately 45% of gasoline and 8% to 10% distillate and other products would be removed; that after that time defendant sold and delivered to the plaintiff the product from tank No. 2, which was a product after the top crude oil had been cracked, — further distilled, the gasoline contents then having been removed; that about thirty days before the fire, Jay, the superintendent of plaintiff, and Mayou, its president, complained to him about the quality of the fuel oil which they received, stating that they could not use it and wanted the defendant to deliver the top crude oil; that he reluctantly consented and thereafter directed fuel oil from tank No. 1 to be delivered to the plaintiff. Mr. Mayou testified as to that conversation, stating, "I told him that the fuel oil we were getting at that particular time was too full of sediment to properly handle it in our burner and I asked for the former grade of fuel that we had." "Q. Was that all you said about the fuel? A. Yes sir." He further testified that Mr. Culver stated that all he could do would be to deliver the product as it came from the topping plant and that this was satisfactory. Perry Jay, an oil expert and superintendent of the plaintiff for about two months previous to May 30, 1941, and who was present at the conversation above mentioned, stated that "the oil that we were getting had too much coke and carbon in it and we wanted to try and get the same oil which we had previously gotten, which was still bottoms or fuel oil." "Q. Still bottoms oil and topping oil is different oils — is there a difference between what you call ``still bottom oil' and the term ``top crude oil'? A. Not any material difference. Still bottom is simply the oil taken off the still after the gasoline, kerosene and distillate have been removed. Q. Mr. Mayou testified that you wanted the topping oil, the top oil? Is that *Page 93 wrong? Isn't that what you called for? A. Still bottom oil is a topping oil." He further testified that still bottoms or topping oil is oil, after the gasoline, kerosene and distillate have been removed, and is the oil which is sold in the trade as fuel oil; that nevertheless , while no gasoline or distillate as such remains in the topping oil, by the application of intense heat, called a cracking process, which breaks up the molecules, gasoline and distillates can thereby be produced and removed by that process; that all they asked for was topping oil which was satisfactory; that a different oil was thereafter delivered, which was darker than the regular still bottoms oil, but that he did not analysize it, supposing that the defendant "took a check on their oli." The witness had previously testified as follows: "Q. As a matter of fact, there are less volatile elements in fuel oil from the cracking plant than there is from a topping plant? A. No. Q. Now will you say whether or not there is a difference in gasoline centent and distillate content in a fuel from a cracking plant and one from a topping plant? A. It all depends on how it is made. Q. They can get as much of the lighter contents such as gasoline and distillate out of a topping plant as they can out of a cracking plant? A. It is possible." We might incidentally mention in this connection that the witness Nice, an oil expert, who testified for defendant, agreed that no gasoline was left in a topping oil, but, if we understand him, his theory is that the gasoline is formed by the cracking process by means of intense heat. There does not seem to be a great difference, if any at all, in the testimony as to the conversation itself regarding the nature or quality of the oil to be supplied to the plaintiff in the future. Whether they all understood the conversation in the same way is another matter. Mr. Culver doubtless wanted to tell the jury *Page 94 that the oil in tank No. 1, which he called topping oil, contained 45% of gasoline and 8% to 10% of distillate; that it contained the same quality of oil which had been sold to the plaintiff and to the trade generally before the defendant installed its cracking plant. But it seems also to be clear that Mayou and Perry Jay meant to tell the jury that what they asked for was fuel oil with the gasoline content, at least the dangerous part thereof, removed. It was the jury's function to settle whatever conflict seemed to arise out of the testimony. We are confronted with several aspects of the case at this point. It is clear that the plaintiff wanted the same quality of oil which it had received previously. If the oil then contained in tank No. 1 was of a different quality of oil than had been contained therein prior to the installation of the cracking plant, then it would seem that Mr. Culver should have informed Mayou and Jay of that fact. But he did not do so. He hesitated to give them that oil, but only because it was more valuable to the defendant to have it go through the cracking process. He did not intimate, so far as the record shows, that it was of a more dangerous quality than had been the oil in that tank prior to the installation of the cracking plant. Perry Jay testified, it is true, that the oil actually delivered was darker than regular still bottoms oil, but that he supposed that defendant had checked the oil, and that the color did not necessarily have anything to do with the composition of the oil. In view of the fact that there was nothing to indicate any danger to him, we hardly think that he was negligent, at least as a matter of law, as counsel for defendant seem to think, in not objecting to the oil received. Again, considering the testimony from another aspect, it would seem that the jury were justified in finding that the oil from tank No. 1 was not in fact any different from the oil contained in that tank *Page 95 prior to the installation of the cracking plant. The defendant's witness Nice, and the witness Jay, testified that topping oil did not contain gasoline, at least in any dangerous quantity and that the cracking process "makes" gasoline. The fuel oil delivered on the day of the fire was dangerous according to the testimony of the State Chemist. Is it likely that the defendant would for a number of years furnish such dangerous oil to the trade generally as well as to the plaintiff especially when defendant knew, as it did, the construction of plaintiff's plant? And another aspect. Millhouse testified that the oil which he furnished to plaintiff two weeks before the fire came from tank No. 1, namely, topping oil. He overflowed the fuel tank of plaintiff at that time. Plaintiff's testimony, — denied, it is true, by Millhouse — shows that the drier was then in operation. — "had been running pretty steady" — just as it was in operation on May 30, 1941, but nothing happened. The only effect of the overflow was to create a "mess" on the floor. Assuming plaintiff's testimony to be true, as the jury had a right to do, the incident would be likely to give the impression that it proved, and the jury probably thought conclusively, that the oil delivered on May 30, 1941, did not come from tank No. 1, but came from another tank (defendant had 42 tanks) which contained oil with a dangerous content of gasoline. And still another aspect of the case is presented. Assuming Mr. Culver's testimony as to the oil in tank No. 2 to be true there is no evidence that the use of it would have been dangerous by going in a pipe directly from the plantiff's fuel tank to the drier, — in other words, if the fuel tank had not overflowed. It proved to be dangerous when that tank overflowed. And if that was due to the negligence of Millhouse, as the jury had the right to find, then that negligence of Millhouse was the cause *Page 96 of the fire. Any view, accordingly, which we may take of the testimony, would seem to lead to the conclusion that the jury were justified in finding for plaintiff, unless the latter was guilty of contributory negligence.
Attention is also called to the testimony of the witness Bozanich, who last delivered oil to the plaintiff about May 14, 1941, and whose testimony was in part, as follows: "Q. Tell the jury just exactly what you saw with reference to any leaks around that tank or pipe. A. Well, there is a kind of union there like and there was a valve, and it would squirt out as you pumped into it — that valve was on the line that I was pumping fuel in * * there was a kind of puddle like; in fact it kind of run over there once." On cross-examination appears the following: "There was bad joints in the (pipe) line. Q. When was it that you saw the line leaking? A. This here was before and after when I saw these lines leaking. Q. Just where in the line was it? A. It was where you were unloading and it went into the tank — that open place in the top where it went in. Q. So it wasn't in the pipe line leading to the tank? A. It was in the pipe line and sometimes it kind of slopped over the top a little * * * it was kind of dripping over the top. Q. And you weren't at all alarmed at that with the drier operating? A. No. Q. You didn't consider it was a fire hazard? A. I figured it was a fire trap. Q. So you stayed close to it? A. I had seen some smudge pots around there, and fire around there." The testimony is not very clear to us, and we are unable to judge of the weight of it. The witness appears to have referred in part at least to the pipe line outside of the building leading to the fuel tank. To that extent his testimony would not be important. He seems to make reference, in part, to a leak on the top where the pipe line went into the fuel tank. No one else seems to have noticed any defects *Page 99 in the pipe line. The witness Mayou testified, as already stated, that the plant was in perfect condition. Again if the witness meant that there was a leak at the point where the outside pipe lead into the fuel tank, as it seems he did, then he was contradicted by the witnesses Groner, Rogers and Mayou who testified that the pipe was fastened solidly into the fuel tank. Counsel for defendant call our attention to the hole as it appeared after the fire. But the witness Thatcher testified that "before it was damaged, the hole was perfectly round and the pipe set in that * * evidently when the tank collapsed, this hole was torn so that it made an irregular hole." We are not satisfied that the leaks testified to by the witness Bozanich presented any dangerous situation. In any event, the effect of the testimony and the credibility of the witness were, we think, for the jury.
That leaves for consideration the construction of the plant in general, particularly the relative position of the drier and the fuel tank, the latter being directly over the drier, and also the gauging-hole on top of the fuel tank which seems to have been open. And counsel for defendant contend that plaintiff was guilty of contributory negligence in having a plant which was constructed in that manner. The witnesses Mendenhall, Varner, Landrigan and Nice testified that the plant was a fire trap and the construction inherently dangerous. The witness Amberson, a graduate of a school of mines, specializing in metalurgy and chemistry, testified that there was nothing inherently dangerous in plaintiff's equipment, though he stated that if the fuel tank were leaky, it would not be safe. The witness Eyrick, manager of a Bentonite plant, a graduate of an engineering school, and thoroughly acquainted with plaintiff's plant, stated that whether or not the relative location of the fuel tank and drier *Page 100 would be dangerous depended upon the use of fuel, and that if a low grade fuel oil is used, it is not dangerous, although he stated that he know of no other plant constructed like that of the plaintiff. And the witness Varner on cross-examination would not say that the plant was a fire hazard if the tank did not leak or would not overflow. It also appears that the plaintiff had carried insurance on the plant up to just a short time prior to the fire, but dropped it, perhaps, on account of the high rate. The plant had been run by plaintiff for twelve years without having any fire, which damaged or destroyed the plant. There can, of course, be no doubt that the plant could have been constructed more safely. The fuel tank could have been placed on the outside of the building where there would have been no possibility of any overflow from it coming in contact with the drier, and the gauging-hole or any other hole could have been so covered that there would have been no possibility of the overflowing of the fuel tank. In other words, the plant could have been so constructed that no act in connection with the delivery of fuel oil, no matter how negligent, could have had any detrimental effect. Was plaintiff bound to do so, particularly in view of the fact that the defendant, as well as Millhouse, knew of the manner of the construction of the plant? Counsel for defendant evidently seem to contend that such was the duty of the plaintiff. Their contention, in brief, seems to be, that a person cannot have any fire hazard on his place without being negligent; that he cannot place his property in such a situation that there is a possibility or probability that it will be injured or damaged through the act or negligence of another. We do not think that the authorities go that far. None of the authorities cited by the defendant does so. Counsel call our attention to the comment to Sec. 478 of the Restatement of the Law of Torts, reading as follows: *Page 101
"* * * When the negligent act of the plaintiff is necessary to make a dangerous situation negligently created by the defendant effective in harm, the plaintiff's negligence is always a contributory factor in producing his harm and as such prevents him from recovery against the negligent defendant. This is also the case when the negligence of the plaintiff and defendant have created forces which are actively operating at the time or substantially at the time that the injury is received. This is so whether the act of the plaintiff which set the force in motion was antecedent or subsequent to the act of the defendant."
Whatever we may think of this statement, it assumes that the plaintiff is actually negligent, — the very fact which is in dispute in this case. Of course, it could not well be contended as an abstract proposition of law that to have a dangerous Bentonite plant on one's premises is negligence per se. Thousands of machine shops contain dangerous instrumentalities. Dynamite and other explosives are kept on premises, and we have no doubt, ordinarily lawfully. And it could hardly be claimed that to negligently destroy such machinery, or negligently set fire to such dynamite or other explosives is excused by the mere fact that these are dangerous instrumentalities or elements. The case before us is not one involving the use of dangerous instrumentalities whereby another has been injured. The solution of the legal problems herein lies in another direction, namely in the cases which deal with exposure of one's premises to the negligence of another. It has been said that to expose oneself or his property to danger is not necessarily negligence. 1 Shearman and Redfield on Negligence, Rev. Ed., p. 249. Contributory negligence does not automatically arise because an accident might have been avoided, but depends on the circumstances and it is usually a question of fact for the jury. Flanigan v. Madison Plaza Grill, Inc.,
"* * * it is generally held that the rule which requires one to exercise ordinary care to protect himself from the results of the negligence of others is subject to the exception that, as a person is entitled to use his own premises for any lawful purpose, his failure to protect them from the negligence of another will not be contributory negligence. But a man has no right to invite peril, or run into danger, even on his own property."
One of the first cases in this country dealing with premises exposed to the negligence of others is Cook v. Champlain Transportation Company, 1 Denio (N.Y.) 91, decided in 1845, in which plaintiff's property, placed close to a river, was destroyed by a negligent fire of a steamboat company. The court stated in part:
"The property destroyed was in an exposed and hazardous position, and therefore in more than ordinary danger from mere accidental fires. This risk the plaintiffs assumed, but not the risk of another's negligence. They were on their own land, and free to use it in any manner and for any purpose which was lawful. * * * * we must at last, I think, come to the conclusion that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care or judgment in its selection can never amount to negligence, *Page 103 so as thereby to deprive him of redress for wrongs done to him by others."
In Yik Hon and others v. Spring Valley Water-Works, 65 Cali. 649, 4 P. 666, water negligently escaped from defendant's water main falling on the roof of plaintiff, damaging his drugs below. The defendant set up the defense that plaintiff's roof was not watertight, and that he was, accordingly, guilty of contributory negligence. The contention was overruled. In Holman v. Boston Land Security Co.,
"He undertook the job of threshing, knowing how the stacks were situated, and was bound to conduct the work with reference to their existing situation. As he engaged to operate on them as they were, and not as in his opinion they should have been, their position with reference to each other did not constitute contributory negligence on the part of the plaintiffs, and was no excuse for negligence on the part of the defendant."
In George v. Odenthal,
"The defendant further insists that the plaintiff was guilty of contributory negligence, in that it appears that the granaries belonging to him, which were destroyed in the fire, together with their contents, were covered with straw. When the plaintiff threshed, the straw from the separator apparently was blown on and around these granaries. Defendant's contention is that, if this straw had not been thus blown onto the buildings, they would not have burned; *Page 104 that therefore the plaintiff was guilty of negligence in this respect. It seems to us that there can be no possible merit to this contention. The defendant had the right, if he saw fit, to cover his buildings with straw, and to assume that no one would be so negligent with respect to fire as to cause the straw stacks or anything that they might cover, to be burned."
In North Bend Lumber Co. v. City of Seattle,
"We need not here decide whether one may use and improve his property in total disregard of a danger, resulting from the negligence of some one else, which he knows exists, and which he is morally certain will damage him. There is no evidence showing or tending to show this condition. We hold, however, that one is not bound to use his property in anticipation of a situation arising, which, because of the negligence of some one else, known to or suspected by him, may or may not cause him damage. The use one may make of his property is not to be measured or limited by any such unstable rule as that contended for by appellant. At least, up to the point where one has become morally certain that the negligence of another will injure him he may make any proper and customary use of his property in total disregard of any negligence of that other, whether such negligence be known to him or not. One owns real estate for the use he may make of it. Being the owner, he may make such use of it as he sees fit, so long as he does not injure his neighbor or violate some principle of the doctrine of police regulation. * * * Any other rule would permit one guilty of wrongdoing to deprive another of the right of making any lawful use of his property." *Page 105
See further Wright v. Brown,
Counsel for defendant rely in part on Chicago, etc. Railway Co. v. Cook,
"The owner of land lying near or contiguous to a railroad right of way, in the exercise of his right to use his land in the natural and ordinary way for purposes to which it is suited, is under no duty to remove from his land such combustible material as dry grass, leaves, weeds, stubble, shucks, corn stalks, broom sedge, or brush, or the like, and hence is not chargeable with contributory negligence for failure to do so, although his property may be extremely liable to take fire in case of negligent management of railroad trains."
So, too, it is said in 4 Shearman and Redfield, supra, Sec. 755:
"The occupant of land near or even next to a railroad is not chargeable with contributory negligence, merely by reason of leaving his land in its natural state or making any legitimate use of his property. It makes no difference if, by so doing, his property may be extremely liable to take fire, in the event of the railroad trains being negligently managed."
The use of one's premises in the customary manner in such case means, as held by Thompson on Negligence, supra, Sec. 2321, "as he might lawfully have used it, if the railroad had not been there." In Kalbfleish v. R.R. Co.,
"That one's use of his property may be subject to the servitude of the wrongful use by another of his property seems an anomaly. It upsets the presumptions of law, and takes from him the assumption, and the freedom which comes from the assumption, that the other will obey the law, not violate it. It casts upon him the duty of not only using his own property so as not to injure another, but so to use his own property that it may not be injured by the wrongs of another. How far can this subjection be carried? * * * * The question is especially pertinent and immediately shows that the rights of one man in the use of his property cannot be limited by the wrongs of another. The doctrine of contributory negligence is entirely out of place. Depart from the simple requirement of the law, that everyone must use his property so as not to injure others, and you pass to refinements and confusing considerations. There is no embarrassment in the principle even to the operation of a railroad. Such operation is a legitimate use of property; other property in its vicinity may suffer inconveniences and be subject to risks by it, but a risk from wrongful operation is not one of them.
"The legal conception of property is of rights. When you attempt to limit them by wrongs, you venture a solecism. If you declare a right is subject to a wrong, you confound the meaning of both. It is difficult to deal with the opposing contention. There are some principles that have axiomatic character. The tangibility of property is in its uses, and that the uses by *Page 108 one owner of his property may be limited by the wrongful use of another owner of his is a contradiction."
A number of cases hold that under conditions, similar to those above mentioned, the question of contributory negligence is for the jury. Note 12 L.R.A. (N.S.) 628, 631. In Southern Ry. Co. v. Patterson,
"After the negligence is apparent, and is seen, one may neither fail to exercise ordinary care against contributing to the injury, nor negligently aggravate the damages. * * * * We approve the general rule that an adjoining landowner may make any proper use of his property, free from the obligation of anticipating and guarding against future negligence on the part of the railroad in operation of its trains, but we hold that this rule has no application where an adjoining owner, with knowledge of negligently maintained menacing conditions on the railway right of way, himself is guilty of identical, mutual, concurring, and contemporaneous negligence."
In this case the question of contributory negligence was submitted to the jury, they finding against the defendant. And it is, accordingly, only necessary to determine whether the maintenance of plaintiff's plant was negligence per se. The foregoing authorities *Page 109
would seem to clearly demonstrate that the mere fact that a man may have a fire hazard on his premises, which he uses lawfully, is not contributory negligence as a matter of law so as to bar recovery by reason of the negligence of another in causing a fire and destroying plaintiff's property. The rule announced in these authorities would seem to be the proper guide in the case at bar. Plaintiff's plant was such as to be exposed to fire through negligence such as that of Millhouse in this case, but was it any more so than property on which a man keeps benzine or kerosene or other like property? It would hardly seem so. At best it could only be said that the difference is one of degree, not of kind, and, as already indicated, to hold that the plaintiff was guilty as a matter of law would be equivalent to hold that the plaintiff was bound to so construct its plant as to be immune from any detrimental act of defendant, no matter how negligent that might be. We are not prepared to go to that length. So far as the record indicates the jury were justified in finding that there would have been no danger of any fire whatever if the defendant had not been negligent. It may have been imprudent for plaintiff to construct its plant in the manner it did, but it was not unlawful and the authorities hold that a person may make any lawful use of his property as he deems best. Furthermore, the witnesses Amberson, and Eyrcik, testifying for plaintiff and who should be better equipped to know the truth than the members of this Court, and whom the jury were authorized to believe, expressed it as their opinion that there was nothing inherently dangerous in the construction of plaintiff's plant. The negligence of Millhouse could not well be said to have been apparent, for plaintiff had used the plant for many years without destruction or damage of its plant by fire, and, moreover, the plaintiff was not bound to *Page 110
anticipate the negligence of the defendant. 38 Am. Jur. 871; Shearman and Redfield, supra, Sec. 11. Hence, too, in the language of the Supreme Court of Washington, no moral certainty that the negligence of the defendant would injure it could well be attributed to plaintiff. Though Millhouse had been negligent once before, plaintiff was not bound to anticipate that he would be negligent a second time, let alone that he would bring fuel oil with a dangerous content of gasoline. Blount Decker L. Co. v. Martin (Tex.Civ.App.)
"The jurisdiction of the court to which the change is directed is complete upon the filing of original papers and transcript in the clerk's office in that court, and the cause must be docketed and stand for trial as if it had originated in that court."
Counsel cite us, among other authorities to Central Bank of Georgia v. Gibson,
"The first asignment questions the correctness of the decision below, in refusing to dismiss the cause in Du Page, for the reason that the original papers had not been transmitted by the clerk of the Cook Circuit Court to the Du Page Court. The statute relative to a change of venue requires that the clerk shall transmit all papers filed in the cause and appertaining or forming part of the record. But can a party who has obtained a change of venue, taken several steps in the cause, consented to a continuance, and at a subsequent term went to trial without objection, make this motion? We think not. The declaration and other pleadings and proceedings in the cause must have been before the Du Page Court in some form, as all the proceedings of the Cook Court have been sent up in the record. If only copies were transmitted by the clerk to Cook to Du Page, it only amounted to an irregularity, which was waived by the defendant below appearing in Du Page and consenting *Page 113 to a continuance, and subsequently to a trial without objection."
See also Burrell v. State,
"You are instructed that the Court permitted you to be examined by counsel concerning your interest in any insurance company; that such examination was permitted only and solely for the purpose of determining whether or not you had such interest. No insurance company is a party in this suit. The question whether or not the defendant carried insurance is not in this case and you must not consider that question in any manner in reaching your verdict."
The record contains no testimony or indication on the question of insurance by the defendant and, hence, the instruction, if given, would not have had any basis therein. Neither are the questions asked the jury in the record. We need not decide whether the instruction would have been proper if anythnig in the record would indicate that the jury were given to understand that the defendant carried insurance to cover a situation such as is before us. So far as we can tell the instruction would have been harmful rather than helpful to the defendant since it called specific attention to the point. It might have given the jury to understand that the defendant was fully protected. We do not think that under the circumstances it was prejudicial error not to give it.
Finding no reversible error in the record, the judgment of the trial court should be affirmed, and it is so ordered.
Affirmed.
KIMBALL, C.J., and RINER, J., concur. *Page 114
Blount-Decker Lumber Co. v. Martin ( 1916 )
Nixon & Danforth v. Piedmont Mutual Insurance ( 1906 )
Waters-Pierce Oil Co. v. King ( 1894 )
Flanigan v. Madison Plaza Grill, Inc. ( 1943 )
Nashville, C. & St. L. Ry. v. Nants ( 1933 )
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway ( 1914 )
Loney v. Laramie Auto Co. ( 1927 )
Myuskovich v. State Ex Rel. Osborn ( 1943 )
Northwest States Utilities Co. v. Ashton ( 1937 )
City of Marion v. Nunn ( 1942 )