Bacon v. A. B. A. Independent Oil & Gasoline Company

• Decision Date: 22 March 1924
• Docket Number: 22740
• Parties: TORRENCE E. BACON, APPELLEE, v. A. B. A. INDEPENDENT OIL & GASOLINE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

198 N.W. 143

111 Neb. 830

TORRENCE E. BACON, APPELLEE, v. A. B. A. INDEPENDENT OIL & GASOLINE COMPANY ET AL., APPELLANTS

No. 22740

Supreme Court of Nebraska

March 22, 1924

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

R. F Stout, for appellants.

Wilmer B. Comstock, contra.

Heard before MORRISSEY, C. J., ROSE, DAY and GOOD, JJ., REDICK District Judge.

OPINION

GOOD, J.

This is an action to recover damages for personal injuries resulting from alleged negligence of defendant. Plaintiff recovered a judgment, and defendant has appealed.

The record discloses, without substantial dispute, the following pertinent facts: Defendant operates a gasoline filling station in the city of Lincoln, Nebraska. Plaintiff owned a motorcycle, equipped with a presto lamp and propelled by a gasoline engine, which he had owned for about two months at the time of the injuries complained of. About 8:30 at night plaintiff rode his motorcycle into defendant's filling station and stopped adjacent to one of the gasoline pumps, and removed the cap from the gasoline tank on his motorcycle, preparatory to being supplied with gasoline. The presto lamp on the front of the vehicle was lighted. This was the first occasion on which plaintiff had had his motorcycle tank filled with gasoline at night, and he testified that he did not know that it was dangerous to fill the tank, with the presto light burning. Defendant's servant came out of the office, and neither looked to see whether the light on the vehicle was burning nor made any inquiries concerning it, but asked plaintiff how much gasoline he wanted. On being informed of the amount desired, he took the hose that is used to convey gasoline from the pump to the vehicle tank and either placed the nozzle in the intake or handed it to plaintiff to place therein. Defendant's servant then began pumping the gasoline into the motorcycle tank, and almost immediately a flame came from the gas tank of the motorcycle, and plaintiff was severely burned and thereby received the injuries complained of in this action.

The negligence complained of is that defendant knew the danger incident to filling the tank on the motorcycle with gasoline while the lights were burning, and knew, or by the exercise of due care should have known, that the light on plaintiff's motorcycle was burning, and that the gasoline was likely to become ignited from said light and thereby injure the plaintiff. Defendant denied any negligence, and alleged contributory negligence on the part of plaintiff. The defendant alleges error in the admission of testimony; that the verdict is not sustained by the evidence; and misconduct of the jury.

A witness was produced, who had had considerable experience in working in and about gasoline filling stations, who was permitted to testify that he knew that it was dangerous to fill a motorcycle tank with gasoline while the presto light thereon was burning. The witness was evidently familiar with gasoline and its volatile and inflammable qualities and knew that it was dangerous to have a flame in close proximity thereto. We perceive no error in the admission of this testimony.

Defendant argues that there is no evidence to show that the gasoline was ignited by the flame from the motorcycle lamp and that the jury were left to conjecture as to the cause of the gasoline becoming ignited. The evidence does not disclose the exact distance that the presto lamp was from the intake of the gas tank on the motorcycle, but there is sufficient evidence to indicate that it...