Combs v. Standard Oil Co. of Indiana

• Decision Date: 06 June 1927
• Docket Number: No. 15995.,15995.
• Citation: 296 S.W. 817
• Parties: COMBS v. STANDARD OIL CO. OF INDIANA et al.
• Court: Missouri Court of Appeals

296 S.W. 817

COMBS v. STANDARD OIL CO. OF INDIANA et al.

No. 15995.

Kansas City Court of Appeals, Missouri.

June 6, 1927.

Rehearing Denied June 27, 1927.

Appeal from Circuit Court, Livingston County; John L. Schmitz, Judge.

Suit by Merrit Combs against the Standard Oil Company of Indiana and another. From a judgment for plaintiff, defendants appeal. Affirmed.

R. R. Brewster, of Kansas City, James W. Davis and Arch B. Davis, both of Chillicothe, and I. M. Lee, of Kansas City, for appellants.

William T. Meikle, of St. Joseph, Kitt & Marshall, of Chillicothe, Miles Elliott, of St. Joseph, and L. B. Gillihan, of Gallatin, for respondent.

WILLIAMS, C.

This is a suit for personal injury, instituted in the circuit court of Daviess county, Mo., taken on a change of venue to Livingston county, Mo., where the case was tried. The trial resulted in a verdict for plaintiff for $1,000. After an unsuccessful motion for a new trial and in arrest of judgment, defendant brings the case here by appeal.

No question is made as to the pleadings. The evidence shows that defendant's place of business, which was a filling station, was in a frame building, which fronted east on Main street in the town of Polo, Mo.; Main street running north and south. There were business houses immediately across the street east of this building, but no other business houses were located in the block where the filling station was located. The main business section of the town was in the block immediately north. The filling station occupied the south half of the frame building. A harness shop occupied the north half of this same frame building. The space occupied by these businesses was separated by a board wall. The part occupied by defendant was divided into two rooms of about equal size. In the front room of the part occupied by defendant was the office of the defendant, Standard Oil Company, and in the rear room was stored a barrel of neolite. The rear door of the part occupied by defendant was a sliding or rolling door. Inside the rolling door was a smaller door on hinges. This barrel of neolite contained about 30 or 32 gallons, and was sitting in the building close to the rear door. The barrel containing this neolite was of very heavy metal and was airtight. The city fire engine was located in the rear of the filling station. One Isely seems to have been the proprietor of the harness shop which occupied the north half of the building. On March 25, 1925, Isely went to his harness shop and about 7:30 in the morning started a fire in the stove. He then went to the post office, and on his way back saw smoke coming out around the flue. He soon discovered the building was on fire. The defendant Frank Buchanan on the day Of the fire was not in Polo. His daughter, Mrs. Robinson, had charge of the business. When the fire was discovered, Isely and another resident of Polo assisted Mrs. Robinson to carry out the office fixtures belonging to defendants. The evidence shows that Mrs. Robinson did not mention the barrel of neolite. When one Shafer attempted to open the rear sliding door of the filling station, so as to get the fire engine out of the building, the door seemed to stick. He went inside through a window and felt along the bottom of the door, but could not discover what was holding it. There was no blaze in the back room at that time, but there was smoke. An ax was procured, the cleat was chopped off the large or rolling door, and the fire engine was taken out. After Shafer had walked across the street northwardly, the can of neolite which was in the building of defendant exploded.

The plaintiff was passing in front of the Polo Trust Company building when the explosion occurred, a distance of about 160 feet from the place where the can of neolite had been placed. The explosion broke the windows in the Polo Trust Company. A piece of glass out of the broken front window of the Polo Trust Company hit the plaintiff on the leg and entirely severed the Achilles tendon. Plaintiff testified that he was a barber; that when the fire broke out he went to see if he could help save anything, or if there was anything he could do. When he arrived on the scene, he saw the people were leaving, and started back to his shop. On the way he was hit by the glass as above stated. G. L. Isely testified:

"It was about, should judge, 20 or 25 minutes after the fire started when the barrel busted."

There is no question as to the explosion, and the witness testified that the smoke and flames went into the air 30 or 40 feet. The iron head of the barrel was blown something like 200 yards. The testimony showed that neolite was a higher grade product than kerosene, and was used for incubators, as it did not carbonize the wick as does kerosene. When comparing the power of steam and gasoline, defendant's expert witness testified that expansion causes the power in steam and the power from gasoline and coal oil is caused by explosion. He further testified that, when you get sufficient power to cause an explosion of a metal container made out of such powerful metal as that "indicating the container in which the neolite was kept," you have a considerable explosion, causing a detonation wave, commonly referred to as a concussion. Either coal oil or neolite, when used in a tractor, will produce sufficient explosive force to operate the tractor.

The main instruction required a jury to find that neolite was likely to explode if heat were communicated thereto, and the defendant could, with the exercise of ordinary care, have known this. Further the jury was required to find that the defendant, its servants or employees, knew, or by the exercise of ordinary care could have known, that fire was likely to be communicated to the neolite in time, so that by the exercise of ordinary care the neolite could have been removed from the building, and that the failure to remove the neolite was negligent, and by such failure the neolite was caused or permitted to explode, and that by reason of the explosion the glass was broken and plaintiff injured. Further the instruction submitted the question as to warning persons in...