Adams v. Virginian Gasoline & Oil Co.
| Decision Date | 18 November 1930 |
| Docket Number | 6771. |
| Citation | 156 S.E. 63,109 W.Va. 631 |
| Parties | ADAMS v. VIRGINIAN GASOLINE & OIL CO. |
| Court | West Virginia Supreme Court |
Submitted October 21, 1930.
Syllabus by the Court.
Owner of dangerous instrumentality must exercise reasonable care to avoid injuring trespassing child, whose presence is known or reasonably anticipated.
An owner or proprietor of a dangerous instrumentality must exercise reasonable care to avoid injury to a trespassing child, whose presence at the time and place of danger was either known to the proprietor or might reasonably have been anticipated.
Incomplete instruction ordinarily may be supplemented by another directly presenting matter omitted.
Ordinarily an incomplete instruction may be supplemented by another which directly presents to the jury the matter omitted from the incomplete one. This is particularly true where the incomplete one includes language, the import whereof is to cover, by necessary implication, the omitted matter.
Special interrogatory whether deceased seven year old child was contributorily negligent held properly refused for not requiring finding whether child could comprehend danger from gasoline.
A special interrogatory requiring a finding by the jury as to whether an injured child was guilty of contributory negligence is properly refused, where neither such interrogatory nor any other accompanying it requires as a preliminary matter a finding as to whether the child was capable of comprehending the danger to which he was exposed.
Additional Syllabus by Editorial Staff.
Whether oil company was negligent in leaving exposed excavations containing gasoline from leaking pipes, and whether such negligence proximately caused death of child held for jury.
Gasoline is "dangerous substance," within rule of care required to avoid injuring trespassing child.
Error to Circuit Court, Roane County.
Action by H. S. Adams, administrator of the estate of James Philip Adams, deceased, against the Virginian Gasoline & Oil Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Harold A. Ritz and B. J. Pettigrew, both of Charleston, for plaintiff in error.
Harper & Baker and S. P. Bell, all of Spencer, for defendant in error.
This writ of error lies to a judgment of the circuit court of Roane county for $10,000, based on a verdict in like amount in favor of the administrator of the estate of James Philip Adams, deceased, against Virginian Gasoline & Oil Company a corporation, for the death of said decedent as a result of alleged negligence on the part of defendant.
The deceased, a child of seven years and five months, met his death the 13th day of September, 1929, in a railroad live stock pen at Spencer. The pen in which the accident occurred had been erected in 1926 by the Roane County Co-operative Live Stock Shippers' Association under a license of permit granted it by said railroad company. An adjoining pen and this pen, designated in the record as Nos. 1 and 2 respectively, were erected in part overlying a two and one-half inch pipe buried at a depth of two and one-half or three feet underground which had been placed there in 1924 by the Ohio Fuel Oil Company under license or permit of the said railroad company for the purpose of transporting gasoline from storage tanks some distance from the railroad company's property to gasoline loading racks at one of the sidetracks of said railroad company. The defendant is successor to the Ohio Fuel Oil Company, with respect to this property. About the middle of the day of the fatal accident, one of the employees of defendant observed that gasoline was coming up through the ground at the stock pens along the route of the gasoline line. Immediately after the noon hour the cattle which were in pen No. 2 were removed therefrom, and three employees of the defendant set to work to find the gasoline leak and to repair the same. The work of digging and shoveling dirt from along the route of the pipe line in an effort to find the point at which the gasoline was leaking continued throughout the afternoon. The men made excavations outside of the pens and in both No. 1 and No. 2 pens. They stopped work for the day at about 5:15 in the afternoon. Leaking gasoline had accumulated in the excavations and a few gallons thereof had been salvaged by employees of the company. There were a few gallons in the bottoms of the excavations when the men stopped work for the day.
There were many people about the cattle pens that day, that being a day on which cattle were brought in from neighboring farms for the purpose of shipment that night or the next morning, and among the persons who were there present were not only those who had business there, but there were others, both men and boys, who were there merely because of their interest or curiosity in what was transpiring. The work of the defendant's employees in searching for the gasoline leak attracted attention. Onlookers viewed the work from the outside of the pens and from their seats on top of the heavy plank fence which surrounded the pens. Among those who were curious observers were Remus Tanner, a boy of sixteen years, and the decedent. Just before defendant's employees ceased work for the day, the Tanner boy assisted in wiring the gate to pen No. 2 in order to prevent cattle from getting in from the runway or alley which extends along the side of the pens. This boy says that Hicks, one of the men working in search of the gasoline leak, told him that he could have some of the gasoline in the excavations for his assistance in wiring the gate, but Hicks denies this. Hicks also testifies that the little boy, the decedent, asked him if he could have some of the gasoline, and that he told him that he could not, and, further, that he told the boy not to go about that place. Remus Tanner testifies that Hicks further told the deceased that he (Hicks) had given the gasoline to Tanner; likewise denied by Hicks. When Hicks and his two fellow workmen left the pen, the Tanner boy and the deceased remained there. The exact location of the Tanner boy at that time does not appear from the evidence, but the deceased was just outside of the pens. Shortly after the three employees left, Tanner started in search of a vessel in which to gather up some of the gasoline. The little boy went along; whether he went agreeably to the older boy or whether he just "tagged after him" does not appear. They went several places, making inquiries for a vessel and finally found one, and, accompanied by Willie Miller, a boy of twelve who joined them en route, returned to the cattle pens. Tanner testifies that he and Miller tried to run away from the small boy. The two older boys proceeded to dip up gasoline, while the small boy looked on. They procured about five gallons of the liquid, and started with it in search of a purchaser. They left the deceased just outside of the pen, although Miller says the deceased was attempting to crawl into the second pen as they left. He remarked to them that he had some tar on his hands and that he wanted to wash it off with gasoline. Tanner says they gave him some gasoline in which to wash his hands, but that he just washed off a little of the tar. That was the last time any witness saw him alive. He was found a little later in the evening lying on his back in the bottom of the excavation in pen No. 2. Efforts to resuscitate him were of no avail. He was dead, asphyxiated by gasoline fumes. Whether he was overcome by the fumes while standing at the edge of the excavation and fell in, or whether he climbed or fell in and was then overcome, does not appear in evidence; probably nobody knows.
The defendant assigns numerous errors, all of which cluster around and are incident to defendant's major proposition that the deceased, at the time of the injury which caused his death, was a trespasser; that the defendant therefore owed him no duty other than not to injure him willfully or wantonly, and that there is no evidence of either willful or wanton injury. The record would not warrant a finding that the deceased was either an invitee or a licensee of the defendant at the time and place of the accident. He was a trespasser as to the defendant, though probably a licensee as to the live stock association. But the rule of law which requires only that a proprietor shall not willfully or wantonly injure a trespasser upon property owned by him or under his control does not stand naked and unqualified in all its stoic severity. Where there is known trespassing upon property, or where such trespassing should in all reason have been anticipated, the proprietor cannot be entirely indifferent thereto by permitting to exist thereon a dangerous instrumentality which may easily be destructive of life or limb of persons participating in such trespassing. This is particularly true where children are involved. Thus we stated in Colebank v. Nellie Coal & Coke Co., 106 W.Va. 402, 145 S.E. 748, 749: In that case a child was injured by powder which it obtained from an open can in an unfastened small building where the powder had been stored by the defendant on its property in the immediate vicinity of portions of its property which were known by officers and agents of the company to be habitually used by children as playgrounds. We held that the question of negligence...
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