Barnhardt v. American Glycerin Company

• Decision Date: 10 March 1923
• Docket Number: 24,319
• Citation: 113 Kan. 136,213 P. 663
• Parties: MARY E. BARNHARDT, Appellee, v. AMERICAN GLYCERIN COMPANY, Appellant
• Court: Kansas Supreme Court

213 P. 663

113 Kan. 136

MARY E. BARNHARDT, Appellee, v. AMERICAN GLYCERIN COMPANY, Appellant

No. 24,319

Supreme Court of Kansas

March 10, 1923

Decided January, 1923.

Appeal from Chautauqua district court; ALLISON T. AYRES, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Automobile on Fire--Abandonment by Driver--Sudden Peril--Rule of Conduct. One driving an automobile loaded with nitroglycerin, who discovers that the automobile is on fire the fire not having been caused by any lack of care on his part, and being stalled on a steep hill, is not guilty of actionable negligence in abandoning the automobile.

2. SAME--Personal Injuries--Proximate Cause. Where the negligence, as found by the jury, is not the proximate cause of the injury, there can be no recovery.

W. H. Sproul, of Sedan, Hugo T. Wedell, and John J. Jones, both of Chanute, for the appellant.

A. M. Parsons, of Caney, J. E. Brooks, and R. O. Robbins, both of Sedan, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for personal injuries alleged to have been sustained by the negligence of defendant. The jury made special findings and returned a general verdict for plaintiff upon which judgment was rendered. The defendant appeals, claiming that what the jury found to be negligence of the defendant is not negligence at all, and not the proximate cause of the injury. The defendant was transporting two automobile loads of nitroglycerin from its factory in Oklahoma into Kansas, over the public highway. It seems that one of the automobiles got on fire, and after they had passed the residence of plaintiff, about 800 feet distant, there was quite a steep hill. The automobile on fire could not make the hill; the driver abandoned it, and the automobile ran back down the hill and upset, and later, perhaps half an hour, the nitroglycerin exploded. At the time of the explosion the plaintiff was 1,100 feet from the place of the explosion. She alleged that the shock of the explosion and the poisonous gases affected her nervous system and gave her permanent injuries, for which the jury allowed her $ 1,500.

The plaintiff in her petition alleged negligence of defendant as follows:

"The agents of said defendant company as above named, while in the employ and service of said defendant company and in compliance with said order of the company to transport said nitroglycerin over said highway, so carelessly, negligently and unlawfully conducted themselves in transporting said nitroglycerin, by driving the cars in which said nitroglycerin was being transported at such a high rate of speed as to cause one of them to catch fire, and negligently, carelessly and unlawfully drove said car while it was so afire along the public highway near to and past the residence of this plaintiff, about a quarter of a mile south of the Floyd schoolhouse in Chautauqua county, Kansas, and about two miles east of Peru, Kansas, and driving it a short distance north of the plaintiff's house, partially up a steep hill, and carelessly, negligently and unlawfully abandoned it on said hill without securing it, and permitting it to run backwards near the plaintiff's residence and into a ditch, which caused the nitroglycerin in said car to explode with great force."

Among the special findings made by the jury are the following:

"5. Was the car in question on fire at the time that the plaintiff first saw it? A. Yes.

"7. If you find for the plaintiff, then state what acts of negligence the defendant, its servants and employees, were guilty of. A. Abandoning car on steep hill without securing it, permitting car to back down hill and upset."

It will be noted that the only negligence of defendant found by the jury was in abandoning the car on a steep hill without securing it, permitting it to back down the hill and upset. This amounts to a finding in favor of the defendant upon all the other acts of negligence alleged in the petition.

Appellant contends that for a person to abandon an automobile load of nitroglycerin when the automobile is on fire and stalled on a steep hill is not actionable negligence; that the emergency is such that one is justified in getting away as soon as possible. We are inclined to adopt that view. In 29 Cyc. 434, the rule is thus stated:

" Persons suddenly placed in a position of peril and impending danger do things which ordinarily would be acts of negligence, but acts done in such extreme circumstances are not to be judged by ordinary rules, and if an act has to be performed in a brief period with no time in which to determine the best course, negligence cannot be predicated of it."

In Donahue v. Kelly, 181 Pa. 93, 37 A. 186, an employee in a restaurant picked up a gasoline lamp which had become improperly ignited, to carry it outside. While proceeding to the door he was severely burned and threw the lamp, causing it to explode. The court held that the employer was not liable as for culpable negligence to a third person injured by such explosion.

In Owen v. Cook, 9 N.D. 134, 81 N.W. 285, it was held:

"A person whose property is threatened with imminent destruction by fire may take such steps for its protection as are reasonable and proper. If his acts aid or contribute to the destruction of another's property he will not be liable as for its negligent destruction. The fire from which, without negligence, he seeks to protect himself, will be considered as the direct and proximate cause of the loss and also the cause of his acts." (Syl. P 2.)

In Allen v. Schultz, 107 Wash. 393, 397, 181 P. 916, it was held that one confronted with a sudden peril not arising from his fault, may, to avoid injury to himself, act in the way the emergency seems to require without being guilty of negligence, though he injures another who in no way contributed to the condition creating the peril.

In Moody v. Gulf Refining Co., 142 Tenn. 280, 218 S.W. 817, it was held:

"An employee of defendant, in unloading a tank car filled with gasoline, is not negligent in that, while emptying the spout at the bottom of the tank into a tub, he, on warning of blasting of rock near by, ran around the car to escape danger, and in his absence the tub overflowed and the overflow was ignited and the fire burned plaintiff's building." (Syl. P 4.)

And further held:

" One who in sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence." (Syl. P 5.)

In Louisville & N. R. Co. v. Wright, 193 Ky. 59, 235 S.W. 1, it was held:

"Failure to exercise the best judgment in an emergency is not evidence of negligence, though the error be fraught with lamentable results." (Syl. P 1.)

In Sieb v. Central Penna. Trac. Co., 47 Pa.Super. Ct. Rep. 228, it was said:

"When one who is without fault is unexpectedly placed in a position of peril he is to be dealt with in the light of his surroundings at that time and he is not necessarily negligent even though his judgment has been wrongly exercised." (Syl. P 2.)

In Filippone v. Reisenburger, 135 A.D. 707, 119 N.Y.S. 632, it was said:

"Plaintiff was working in a building excavation, and was standing on a runway leading into the excavation, when defendant stepped upon a barrel standing near the runway, and, as claimed by plaintiff, the barrel turned over and defendant caught plaintiff's feet to prevent himself from falling into the excavation, and caused plaintiff to fall and injure himself but defendant claimed that the barrel gave in and he took plaintiff's hand, held out to help him...