Chicago, M., St. P. & P. R. Co. v. Johnston's Fuel Liners, Inc., 8059

• Citation: 122 N.W.2d 140
• Decision Date: 29 May 1963
• Docket Number: No. 8059,8059
• Parties: CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a Corporation, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., a Corporation, Defendant and Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an Individual Doing Business Under the Trade Name of Regent Oil Company, Third-Party Defendant and Respondent.
• Court: United States State Supreme Court of North Dakota

Page 140

122 N.W.2d 140

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a Corporation, Plaintiff and Respondent, v. JOHNSTON'S FUEL LINERS, INC., a Corporation, Defendant and Third-Party Plaintiff and Appellant, v. Leonard PRINCE, an Individual Doing Business Under the Trade

Name of Regent Oil Company, Third-Party Defendant

and Respondent.

No. 8059.

Supreme Court of North Dakota.

May 29, 1963.

Rehearing Denied June 14, 1963.

Syllabus by the Court

1. The defendant and the third-party defendant, who were in the business of handling gasoline, had a duty to exercise such care as reasonable men would have exercised in the handling of a commodity which was potentially dangerous if mishandled, so that non-negligent persons owning or using property on adjacent premises would not be damaged by the failure to use such care on the part of such defendants.

2. The established rule is that questions of negligence, contributory negligence, and proximate cause are questions of fact in tort actions unless the evidence is such that reasonable minds can draw but one conclusion.

3. On a motion for judgment notwithstanding the verdict, the evidence will be construed most favorably to the party against whom such judgment is sought.

4. Considering the facts in light of the trial court's instructions, which are the settled law of this case, we believe that reasonable minds could have inferred from the direct and circumstantial evidence in the case that both the third-party plaintiff and the third-party defendant were negligent and that their negligence jointly was the proximate cause of the damage complained of.

5. Where a motion is made for a judgment notwithstanding the verdict and, in the alternative, for a new trial and the trial court grants the motion for judgment notwithstanding the verdict but does not pass conditionally on the motion for a new trial, as required by Rule 50(c), N.D.R.Civ.P., on reversal of the trial court on appeal, the case may be remanded to permit the moving party to press promptly for a ruling from the trial court on his motion for a new trial.

Donald R. Crabtree, Ellendale, and Dwight Campbell and Stanley R. Voas, Aberdeen, S. D., for plaintiff and respondent.

Conmy & Conmy, Bismarck, for defendant and third-party plaintiff and appellant.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Rausch & Chapman, Bismarck, for third-party defendant and respondent.

ERICKSTAD, Judge.

This is an action on the part of the plaintiff, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, to recover damages from the defendant, Johnston's Fuel Liners, Inc., for losses incurred by the plaintiff arising out of a petroleum fire allegedly caused by the defendant.

The aforesaid defendant answered the plaintiff, denying liability, and, as a third-party plaintiff seeking to recover damages suffered by the said defendant in the fire, brought Leonard Prince, an individual doing business under the trade name of Regent Oil Company, into the suit as a third-party defendant.

Leonard Prince answered, denying liability, and counterclaimed, asking to recover damages for his losses arising out of the same fire.

This case was consolidated for trial with the case of Regent Cooperative Equity Exchange, plaintiff and respondent, versus Johnston's Fuel Liners, Inc., defendant and appellant, and Leonard Prince, an individual doing business under the trade name of Regent Oil Company, defendant and respondent; and the case of C. W. Newby, doing business as Regent Lumber Company, plaintiff and respondent, versus Johnston's Fuel Liners, Inc., defendant and third-party plaintiff and appellant, versus Leonard Prince, an individual doing business under the trade name of Regent Oil Company, third-party defendant and respondent; and was tried before a jury in Hettinger County.

The jury, on October 24, 1961, returned a verdict in favor of the plaintiff, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, in the sum of $3,024.34.

The jury also found the defendant, Johnston's Fuel Liners, Inc., and the third-party defendant, Leonard Prince, to be joint tort-feasors, and thus, in effect, held against the two of them jointly in the sum of $3,024.34.

The jury dismissed the claim of Johnston's Fuel Liners, Inc., against Leonard Prince, and the claim of Leonard Prince against Johnston's Fuel Liners, Inc.

The third-party defendant, Leonard Prince, moved for judgment notwithstanding the verdict or, in the alternative, for an order granting a new trial. The proper motions for a directed verdict had been made.

District Judge Harvey J. Miller granted the motion of the third-party defendant and vacated the verdict as it applied to the said third-party defendant, and, further, assessed damages against the defendant, Johnston's Fuel Liners, Inc., in the amount of $17,710, in favor of the third-party defendant. He did not pass on the motion for new trial.

The defendant, Johnston's Fuel Liners, Inc., moved for judgment notwithstanding the verdict against said defendant, but did not move for a new trial in the alternative. This motion was denied by Judge Miller.

The defendant, Johnston's Fuel Liners, Inc., appeals from the judgment against said defendant in favor of the plaintiff, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, in the sum of $3,024.34 plus costs, dated February 5, 1962, and also from the judgment of $17,710 in favor of Leonard Prince and against the defendant, dated January 27, 1962. The defendant, Johnston's Fuel Liners, Inc., also appeals from the order denying the motion of the defendant, Johnston's Fuel Liners, Inc., for judgment notwithstanding the verdict.

A brief summary of the facts follows.

On Sunday, the 31st day of July 1960, Larry King, an employee of Johnston's Fuel Liners, Inc., arrived at Regent, North Dakota, with a load of gasoline to be unloaded at the bulk station of the defendant, Leonard Prince.

Leonard Prince had ordered the gasoline through another driver who had conveyed the request to the office of Johnston's Fuel Liners, Inc. The gasoline was transported from Newcastle, Wyoming, to Lemmon, South Dakota, where Larry King took over the load and delivered it to Regent, North Dakota.

King inquired at the garage and implement establishment owned by Leonard Prince and there was told to proceed to the bulk plant to unload the gasoline.

While stopping at the railroad tracks en route to the bulk plant, King was met by Roger Prince, the son of Leonard Prince, who was employed by his father.

After a short conversation, Roger Prince proceeded in his own vehicle to the bulk station where Larry King parked the truck and trailer preparatory to unloading near tank No. 3, which was the tank used for storing regular gasoline.

As it was impossible to unload any of the gasoline until certain padlocks on certain valves were unlocked, Roger Prince proceeded to unlock various padlocks attached to certain valves connected to the receiving equipment owned by Leonard Prince.

The transporting equipment consisted of a Kenworth truck with a tank mounted thereon and a tank trailer connected thereto.

The capacity of the truck tank and trailer tank exceeded 8,000 gallons.

The capacity of receiving tank No. 3 was approximately 17,300 gallons.

The truck was equipped with a small gasoline-powered pump engine for use in unloading the truck and trailer tanks, which engine was placed by Mr. King in a slight depression between tank No. 3 and the truck and trailer.

After unlocking the afore-described padlocks, Roger Prince assisted Larry King with the hoses, but the connections to the pump, to the valve on the trailer tank, and to the valve on receiving tank No. 3 were made by Larry King.

In the process of making the connections, it was discovered that a certain fitting on the pump was missing, and Roger Prince found a fitting in the Prince warehouse which was used by King to make the proper connection.

Neither Roger Prince nor Larry King measured the contents of tank No. 3 to determine whether the tank would hold the gasoline in the truck tank and trailer tank, and neither asked the other to do so. In fact, neither of the said parties knew how much gasoline was contained in the receiving tank, nor did he know the capacity of the tank. A calibrated measuring stick which could have been used to measure the contents of the tank was located in the warehouse, but was not made available to Mr. King.

The records showing the contents of the storage tank were located in a locked safe of the Regent Oil Company office, and a chart which would have permitted an interpretation of the calibration on the measuring stick, had it been used, also was in the said office. The measuring stick, however, could have been used without the chart to determine whether the tank was empty, partially full, or nearly full, and if it had been used it might have prevented an overflow.

When the hoses were properly connected, Roger Prince apparently opened the valve attached to the bottom of tank No. 3 while Larry King opened the valve attached to the trailer tank, allowing a gravity flow to the pump. Some difficulty was met in trying to start the pumping process and, in attempting to prime the pump, some gasoline was spilled at the pump engine.

Attached to the top of receiving tank No. 3 was a vent which permitted vapor to escape from the tank when the tank was being filled and permitted air to enter the tank when the tank was being emptied.

When the trailer tank was emptied, the hose was transferred to the truck tank, and unloading of the truck tank was then begun. In changing the hose from one tank to the other, about a gallon of gasoline was spilled by King at the trailer.

At about this time, Leonard Prince, the owner of the bulk station, arrived at the scene and his son, Roger Prince, left the scene.

Leonard Prince asked Larry King if the gas engine was the regular equipment used to unload the gasoline, but he did...