Burnside v. Gulf Refining Co

• Decision Date: 15 May 1933
• Docket Number: 30555
• Citation: 148 So. 219,166 Miss. 460
• Court: Mississippi Supreme Court
• Parties: BURNSIDE et al. v. GULF REFINING CO

148 So. 219

166 Miss. 460

BURNSIDE et al. v. GULF REFINING CO

No. 30555

Supreme Court of Mississippi

May 15, 1933

Division A

Suggestion Of Error Overruled July 17, 1933.

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by W. C. Burnside and others against the Gulf Refining Company and another. From a judgment for defendants plaintiffs appeal. Affirmed.

Affirmed.

Engle & Laub and Whittington & Brown, all of Natchez, for appellants.

It was a question for the jury to say, first, from the evidence in the case, if they believed that one of the codefendants had negligently over-filled the gas tank or had negligently replaced the cap upon the tank so that leaking resulted secondly, whether a reasonably prudent person, over-filling a gas tank or negligently replacing a cap upon an automobile gas tank, would reasonably anticipate and foresee probable injury as a result therefrom, the nature of gasoline considered.

The rule is that the exact consequences which would take place need not have been foreseen, but all that is required in order to hold a defendant is that on account of such negligence injury and damage might reasonably be foreseen as flowing from such negligence.

Illinois Central Railroad Company v. Siler, 239 Ill. 390, 82 N.E. 362, 15 L.R.A. (N.S.) 819; Green's Rationale of Proximate Cause, page 65; Hines v. Morrow, 236 S.W. 183; Stemler v. City of Pittsburg, 135 A. 100; Guinan v. Famous Players-Lasky Corp., 167 N.E. 235, 267 Mass. 501; Evans case, 122 So. 735, 154 Miss. 475.

Violation of statute or ordinance is evidence of negligence.

Milbury v. Turner Center System (Mass.), 174 N.E. 471.

Violating statute is negligence per se and one proximately injured thereby may recover therefor against violator.

Newell Contracting Co. v. Berry (Ala.), 134 So. 870; Daly v. Swift & Co., 300 P. 265; Godfrey v. Queen City Coach Co., 159 S.E. 412, 201 N.C. 624; Teche Lines v. Bateman, 139 So. 159, 162 Miss. 404.

The facts in our present case required the trial judge to submit the question of negligence to a jury.

Elkton Auto Sales Corp. v. State of Maryland, 53 F.2d 8.

The gasoline in our case was wholly under the control of the defendants Miller and Gulf Refining Company, and the fire resulting therefrom occurred in the car of Miller and on the ground which had become saturated from the gasoline dripping therefrom, and neither of these defendants offered any evidence to explain the origin of the fire or that the igniting factor was due to some intervening cause which could not reasonably have been anticipated by the defendants and whether or not the intervening cause of throwing a lighted match in the gutter could not reasonably have been anticipated by these defendants, we submit, was most certainly a question for the jury in view of the findings of this court.

Evans v. Standard Oil Co., 154 Miss. 475, 122 So. 735.

Just as the court has held it was a question of fact for the jury to decide as to contributory negligence, so in our instant case it was a question for the jury to decide whether the defendants' negligence would probably cause harm to the plaintiff though the precise manner in which it occurred could not be foreseen.

Burk v. Hodge et al., 217 Mass. 182, 104 N.E. 450, 211 Mass. 156, 97 N.E. 920; Leahy v. Standard Oil Co. of N. Y., 224 Mass. 352, 112 N.E. 950.

We submit that the question of causation is a pure question of fact to be decided by the jury and that in this instance there was evidence justifying a finding that the defendant's negligence in overfilling the gas tank and in negligently replacing the cap thereon caused the injury suffered by the plaintiff, and that, therefore, the matter should have been submitted to the jury as to such negligence and damage.

Beach on Contributory Negligence (3 Ed.), par. 45; Teche Lines v. Bateman, 139 So. 159, 162 Miss. 404; Lynn v. Roberts, and Wimbush v. Roberts, 241 N.W. 214, 257 Mich. 116; Feeny v. Standard Oil Co. (Calif.), 209 P. 85; Armour Packing Co. v. Walker Price Oil Co., 1 La. App. 477; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Cumberland Tel. & Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; 29 Cyc., pars. 492-496; Wilbourn v. Charleston Cooperage Co., 90 So. 9, 127 Miss. 290.

Where an injury results from the negligence of defendant and some other contributing cause, but not an independent efficient cause, and the injury could not have occurred in the absence of either cause, defendant's negligence is a proximate cause of injury, if, under the circumstances of defendant's negligence, the injury was a probable, natural and usual result of the two contributing causes.

Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 46 So. 732, 55 Fla. 514, 20 L.R.A. (N.S.) 92; Burnett v. Alabama Power Co., 74 So. 459, 199 Ala. 337; Mars case, 9 F.2d 183.

Hirsh, Dent & Landau, of Vicksburg, and Kennedy & Geisenberger, of Natchez, for appellee, The Gulf Refining Company.

This court, in no uncertain terms, has held that verdicts and judgments must be based on evidence and rational inferences from the proven facts and circumstances and not upon speculation and conjecture.

Tyson v. Utterback, 154 Miss. 381, 122 So. 496.

The evidence and the facts in this case present no grounds for rational inference that the fact that ten gallons of gas were placed in the tank and the cap properly placed thereon caused the fatal injury. This was done three hours and fifty minutes before the tragedy occurred. The car had been moved by the defendant, Miller, its owner, from its parking place and driven around over the city streets; automobiles had been continuously parked and re-parked near it, in front of and adjacent to the Eola Hotel, in that part of the street where Miller's car was parked.

It is the duty of the trial judge to direct a verdict for one of the parties when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding

Baltimore & O. R. Co. v. Groeger, 266 U.S. 521, 524, 45 S.Ct. 169, 69 L.Ed. 419, 422; Elliott v. Gulf, Mobile and Northern Railroad Company, 145 Miss. 768, 111 So. 146.

The defendant is not liable. The accident was not one which could have been reasonably foreseen or prevented.

Precaution is a duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand that a person should prevision or anticipate an unusual, improbable or extraordinary occurrence, though such happening is within the range of possibilities.

Illinois Central Railroad Co. v. Bloodworth, Record No. 30,038.

The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

50 C. J. 837; 22 R. C. L. 110; Bufkin v. Louisville & Nashville Railroad Co., 161 Miss. 594, 137 So. 517; Louisville & Nashville Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434; Howell v. Railroad Co., 75 Miss. 242, 21 So. 746; Clisby v. M. & O. Railroad Co., 78 Miss. 937, 29 So. 913; Y. & M. V. Railroad Co. v. Millsaps, 76 Miss. 855, 25 So. 672; Miss. Power Co. v. Sellers, 160 Miss. 512, 133 So. 594; Topeka & Santa Fe Railroad Co. v. Calhoun, 213 U.S. 1.

But even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight.

Pollock, Torts (8 Ed.), 41; Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 75; Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425.

Kennedy & Geisenberger, of Natchez, for appellee, J. Balfour Miller.

The facts fail to present any question of negligence on the part of the appellee which could have been submitted to the jury.

It is our contention that Mr. Miller was required to use only ordinary care that a reasonably prudent man would exercise under the circumstances. That he, as the driver and operator of his automobile, is not made by law an insurer of all persons against injury through the operation of his automobile, and if, while he was in the exercise of that reasonable care and caution required of him by law, a person became injured either through the operation of the car or explosion of the fuel which propels it, then the appellee is not liable for such injuries, there being no negligence on his part under the law.

2 R. C. L. 1182, sec. 18; and cases cited in 1 R. C. L. (perm. sup.), page 642, sec. 18.

Appellants contend, however, that because of violation by appellee of an ordinance of the city of Natchez, his conduct was either a presumption of negligence or prima facie negligence or negligence per se. It is our contention that there was no violation of this ordinance, and that it did not cover, nor was it intended to cover, a case of the kind now before the court.

In order for there to be a violation of this ordinance, must be present two conditions: first, there must be a leaky part of the motor vehicle, and second, gasoline or oil must drip upon the streets.

We maintain, (1) that, under the plain, general and ordinary use and meaning of the word, there was no leaky apparatus or part of appellee's automobile, and (2), that the ordinance being criminal in its nature, is to be strictly construed in favor of anyone charged with the violation thereof.

The court, in construing a statute, will assume that the Legislature employed the words of the statute in their usual and most common sense.

State v. J. J. Newman Lbr. Co., 103 Miss. 263, 60 So. 215, 45 L.R.A. (N.S.) 858; Town of Union v. Ziller, 151 Miss. 467, 118 So. 293, 60 A.L.R. 1155; Warburton-Beacham Supply Co. v. City of...