O'BRIEN v. Standard Oil Co. of Kentucky, 5728.
| Decision Date | 11 March 1930 |
| Docket Number | No. 5728.,5728. |
| Citation | 38 F.2d 808 |
| Parties | O'BRIEN v. STANDARD OIL CO. OF KENTUCKY. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William M. Toomer, of Jacksonville, Fla. (Snyder, Henry, Thomsen, Ford & Seagrave, of Cleveland, Ohio, De Witt T. Deen, of Daytona, Fla., and W. M. Toomer, of Jacksonville, Fla., on the brief), for appellant.
Martin H. Long, of Jacksonville, Fla., for appellee.
Before BRYAN and FOSTER, Circuit Judges, and SIBLEY, District Judge.
Mrs. O'Brien sued the Standard Oil Company for the negligent killing of her husband, William G. O'Brien. A verdict for the defendant was directed in the District Court. Without substantial dispute it was proven that the appellant's husband drove his automobile into a filling station of the defendant and upon the hydraulic rack which was used to elevate cars so that the oil might be conveniently drained, and gave order that the oil be changed. The appellant remained in the car, a sedan. Her husband was standing on the left-hand running board, wiping off the wind shield, spots upon which appellant was pointing out to him. He finished, stepped back, fell from the car, which had been elevated about five feet without appellant having observed it, and was killed. Mr. O'Brien was 39 years old, in good health, and the thing happened in broad daylight. Photographs show that the rack was in an open place, with a large advertising sign just in front of the car, and the side of the filling station house 5 or 6 feet to the right of the car, against the wall of which was the cock where the air was turned on to elevate the rack. The car itself would be between this cock and Mr. O'Brien, as he was on the left-hand running board. The rack operated smoothly and noiselessly, and was in no way defective. The channel plates on which the car wheels roll were about 14 inches wide and extending beyond the running boards on either side. The front door of the automobile was hinged on the side next to the windshield. The appellant testified that her husband stepped out on the concrete floor before directing the oil to be changed, then got his dust cloth and stepped on the running board to wipe the windshield. She did not know just when the car was raised. Defendant's agent testified that when the order to change the oil was given, he asked would they get out, and no reply being given, he concluded they would not and turned on the air and went inside to get a wrench, both Mr. and Mrs. O'Brien being then in the car, but when he returned Mr. O'Brien was on the outside. A...
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