Bellomy v. Bruce, Gen. No. 9191.

• Decision Date: 27 February 1940
• Docket Number: Gen. No. 9191.
• Citation: 303 Ill.App. 349,25 N.E.2d 428
• Parties: BELLOMY v. BRUCE ET AL.
• Court: United States Appellate Court of Illinois

303 Ill.App. 349

25 N.E.2d 428

BELLOMY

v.BRUCE ET AL.

Gen. No. 9191.

Appellate Court of Illinois, Third District.

Oct. 19, 1939.

Rehearing Denied Feb. 27, 1940.

Appeal from Circuit Court, Adams County; Fred G. Wolfe, Judge.

Action by Oscar Bellomy against Albert H. Bruce, doing business as the Consolidated Oil Company, and another, for personal injuries. Judgment for plaintiff, and defendants appeal.

Affirmed. Pope & Driemeyer, of East St. Louis, and Lancaster & Nichols, of Quincy, for appellants.

Wilson & Schmiedeskamp, of Quincy, for appellee.

HAYES, Justice.

This is an appeal by defendants-appellants (hereinafter called defendants) from a judgment in favor of plaintiff-appellee (hereinafter called plaintiff) for twenty thousand dollars for personal injuries.

The case was tried upon the issues made by an amended complaint, consisting of two counts. The first count charged the defendants with negligently and carelessly unloading gasoline from a truck in the presence of a lighted lantern. An explosion and fire resulted therefrom, whereby the plaintiff was burned and permanentlydisabled. Plaintiff further avers that he was present during the unloading of the gasoline and was all of the time in the exercise of due care for his own safety. Count two charges the defendants with wantonly unloading the gasoline from a tank truck inside of a building on a hot night, and while a lighted lantern was burning in said building, and that an explosion and fire did result.

The answer admitted the allegations of the complaint except that it denied that plaintiff exercised due care; denied the charges of negligence and of wanton conduct; avers that plaintiff actively participated in unloading the gasoline, and charges that any injury received by the plaintiff was the direct and proximate result of his own carelessness and negligence. The plaintiff replied, denying the allegations of negligence on his part as set out in defendant's answer.

Plaintiff was the operator of a filling station in Coatsburg, which he leased from the defendant Bruce. Bruce was a wholesale gasoline dealer in Quincy. Plaintiff purchased gasoline from Bruce which Bruce delivered to his filling station in Coatsburg in an automobile tank truck. For some time prior to July 14, 1938,-- the date of the explosion in question,--the plaintiff had an arrangement with Bruce whereby Bruce's truck was, at plaintiff's request, to be used for deliveries of gasoline plaintiff had to make in the country. On each occasion when there was a country delivery to be made, plaintiff or his boy would go with the driver of the truck and assist in emptying the contents of the truck tank into the farm tank.

About noon on July 14, 1938, plaintiff ordered a load of gasoline from Bruce. Bruce's truck arrived at plaintiff's filling station about 7 or 7:30 p. m. with 585 gallons of Anti-Knock and 315 gallons of White Gasoline. Defendant Conover was driving the truck. Plaintiff told Conover that 250 gallons of the white gasoline were for a farmer named Schoch who wanted it delivered that evening, and asked Conover to take it to Schoch's farm. The anti-knock gasoline was unloaded at plaintiff's station, and plaintiff gave Conover a check for the price of the entire load. None of the white gasoline was unloaded into plaintiff's tanks, as it was the intention of both of them to bring back the gasoline that was not put into the farmer's tank, and to dump it into plaintiff's tank at his filling station, after the delivery to Schoch had been completed.

Plaintiff got into the truck with Conover and two Niehoff boys, one of whom was then in the employ of Bruce, and they went to the Schoch farm about seven miles distant. Plaintiff directed the way they traveled. Plaintiff, at one time, lived near Schoch's farm and was acquainted with it and the buildings on it.

When plaintiff and Conover arrived at Schoch's farm, it was after dark,--about eight o'clock or a little after,--and plaintiff saw Schoch walking between the house and the machine shed with an open-flame lantern, an oil burning lamp. He saw Schoch open the door to the machine shed, go inside, and noticed that he had the lighted lantern in his hand when he went into the shed. Schoch's son drove a car out of the machine shed, and Conover backed the truck into the shed through the door from which the car had been driven, while plaintiff stood to one side of the truck, outside the shed, directing him. Plaintiff then went inside the shed on the left side of the truck.

The machine shed was approximately thirty feet long, north and south. Its width east and west is not stated in the record, but it appears that it had two doors on the south side. The truck was backed through the east door. The rear end of the truck projected one and a half to two feet into the shed. The 250 gallon tank, which was to be filled with gasoline, stood slightly to the north of the rear end of the truck and about six feet west of it. The top of this tank was four and a half or five feet off the ground. There was a cultivator and other farm machinery along the west and north walls of the shed. There was a door on the east side of the shed at the north end.

After Schoch opened the door into the shed, he went inside the shed and moved different articles off the gasoline barrel, with his lantern on his arm. He had not finished moving things out of the way before the truck backed in. They began unloading the gasoline just before he was through moving things around. Defendant Conover drew the gasoline from the tank truck by drawing it into five gallon pails which he then handed to the plaintiff, and plaintiff emptied the gasoline into a hole in the top of Schoch's tank through a funnel. Conover drew gasoline from the tank truck into five gallon pails by means of a faucet at the back end of the truck. The evidence shows that five gallons of gasoline weigh about thirty five pounds and that with the can, the weight would be about forty five pounds. Conover testified that he knew plaintiff was busy pouring the gasoline into the tank; that plaintiff was pouring this gasoline as high as his head or a little over, and that plaintiff was facing the west and south.

Plaintiff testified that after approximately ten gallons of gasoline had been drawn, he told Schoch to take the lantern out and that Schoch started back towards the door in the northeast corner of the building. Plaintiff knew there was a door there as he had often used it, and from the time Schoch started back to the door with the lantern, plaintiff did not see the lantern again or know it was in the shed. Conover testified that he heard plaintiff say something that night about taking the lantern out of the place; that he also said the same thing as plaintiff did about taking the lantern out and that he intended it for Mr. Schoch. Schoch testified that he did not hear either the plaintiff or Conover say anything about taking the lantern out, but that he (Schoch) just made the remark, “I better carry that lantern out.” Schoch did not carry the lantern out, but took it back and set it down about one and a half feet from the east wall of the shed by the north door, and about twenty feet from the point where the gasoline was being poured into the farm tank.

The lights in the shed consisted of a flashlight, which one of the boys held while plaintiff was emptying the cans through the funnel into the tank; another flashlight which Conover held in his hand; the three red lights on top the tank truck which are in a row on the back-end, and the tail light on the truck. Schoch testified that when he started back with the lantern, there had been no explosion or fire,--“ten gallons of gasoline had been drawn out at that time. I went back and set the lantern down and did not move it after that time. There was an explosion and fire later that evening. I talked to my neighbor Walter Weller at the northeast door. I turned around and started to walk back to the truck with the flashlight in my hand. After I set the lantern down at the door, I think about twenty gallons of gasoline was drawn before the fire or explosion.”

Conover testified that he could draw gasoline faster than Bellomy could pour. When Conover turned to hand the cans of gasoline to Bellomy, Conover turned his face to the west and then around to the north. Conover testified, “nobody had it (lantern) when I seen it. I saw it sitting back at the door at the north end of the building at the east wall on the ground, that was the first I saw of the lantern. Bellomy was facing with his face towards the west and south. When I saw the lantern it was about northeast from Bellomy. His back was just towards the lantern as he was pouring. After I saw that lantern there on the ground, I drew about four gallons of gasoline into the can. When I saw the lantern on the ground I did not say anything to anybody to take it out. I had said the lantern should be taken out. I realized it was dangerous to be sitting where it was, and it should be taken out immediately and that leaving it there too long might cause an explosion. I continued to draw four gallons of gasoline. Up to the time I was drawing the four gallons of gasoline there had been no explosion and after I had drawn the four gallons of gasoline there was an explosion.”

As a result of the explosion, plaintiff was terrifically burned. The evidence shows that most of his clothing was burned off his body and that he has not been able to wear clothing from the time of the fire up to the date of the trial. The most severe burns were on the right leg and left arm. The evidence disclosed that he had suffered a great amount of pain; that he had incurred first, second and third degree burns; that he was severely burned over a great part of his body; that there were blisters and pieces of skin hanging from his arms and other portions of his body, and for several days following the injury he was close to death. At the time of...