Driekosen v. Black, Sivalls & Bryson, Inc.

• Decision Date: 16 April 1954
• Docket Number: No. 33449,33449
• Citation: 64 N.W.2d 88,158 Neb. 531
• Court: Nebraska Supreme Court
• Parties: DRIEKOSEN v. BLACK, SIVALLS & BRYSON, Inc. et al.

Page 88

64 N.W.2d 88

158 Neb. 531

DRIEKOSEN v. BLACK, SIVALLS & BRYSON, Inc. et al.

No. 33449.

Supreme Court of Nebraska.

April 16, 1954.

Syllabus by the Court

1. A motion for directed verdict, or its equivalent must, for purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can reasonably be deduced from the evidence.

2. In a jury case involved issues of negligence, where different minds may reasonably draw different conclusions or inferences from the evidence adduced, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury, but where the evidence is undisputed, or but one reasonable inference or conclusion can be drawn from the evidence, the question is of law for the court.

3. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with but independent of his acts and not flowing therefrom, and not reasonably in the nature of things to be contemplated or foreseen by him, and produced the injury, it is the dominant cause.

4. If the original negligence is of a character which, according to the usual experience of mankind, is liable to invite or induce the intervention of some subsequent cause, the intervening cause will not excuse it, and the subsequent mischief will be held to be the result of the original negligence.

5. In an action based on negligence the question of whether or not there was an intervening cause which removed the negligence of the defendant as the proximate cause is usually one for a jury.

6. A plaintiff is not bound to exclude the possibility that the accident might have happened in some other way, but is only required to satisfy the jury, by a fair preponderance of the evidence, that the injury occurred in the manner claimed.

7. Where contributory negligence is pleaded as a defense, but there is no competent evidence to support the same, it is prejudicial error to submit such issue to the jury and requires the granting of a new trial.

8. A vendor and the manufacturer or supplier of a chattel who know or have reason to know that it is likely to be dangerous when used and which is purchased as safe for use in good faith reliance upon their professions or representations of safety, competence, and care, are subject to liability to the purchaser or to others whom they should expect to share in or be in the vicinity of its use, for damages proximately caused by their failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.

Maupin & Dent, North Platte, for appellant, Black, Sivalls & Bryson, Inc.

Edwin D. Crites, Chadron, for appellants Dale O. Larson and another.

John H. Keriakedes, Hay Springs, Perry & Perry, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL, Justice.

Plaintiff Gregory Driekosen brought this action against defendants Black, Sivalls & Bryson, Inc., hereinafter designated as B. S. & B., and Dale O. Larson and Charles H. Brown, Jr., doing business as Larson and Brown Equipment Company, a partnership, hereinafter designated as L. & B., or the partners, seeking to recover substantial damages resulting from the explosion of an installed propane gas system sold to plaintiff and alleged to have been negligently installed by defendants in plaintiff's home. The action was specifically alleged to be and was ex delicto in character.

For his cause of action plaintiff alleged, insofar as important here: That defendant B. S. & B. was engaged in the manufacture, wholesale, and distribution of pressure vessels, fittings, piping, and related merchandise for the sale and installation of propane gas systems for the furnishing of heat and power, and that its authorized dealer, defendant L. & B., was engaged in retailing said equipment and merchandise and installing the same, and in the sale of propane gas for use therein. That defendants knew or should have known that propane gas to be used in the equipment for its propane gas system so furnished by them was a dangerous substance, having volatile and explosive characteristics, and defendants knew or should have known that if such gas were permitted to leak from any part of said system it would follow along any submerged pipings or fittings into the residence of persons using such gas and system. That on or about November 5, 1947, after defendants had been informed by plaintiff of the purposes for which it was to be used, plaintiff purchased from L. & B. as authorized dealer for B. S. & B., a complete B. S. & B. propane gas system, which was installed by L. & B. in his acreage home about 1 mile south of Hay Springs, Nebraska. That at time of purchase and installation thereof and prior thereto, defendants each, for the purpose of inducing plaintiff to purchase and install such propane gas system, orally, expressly, and falsely represented that said system was constructed of long-lasting, top-quality materials, and that their skilled workmen L. & B. would provide the necessary fittings and copper tubing and do all the work of skilled installation. Further, also, that during the late summer and fall of 1947, defendants and each of them cooperated and joined in causing to be published a series of advertisements in the Hay Springs News respectively therein representing the quality, safety, and adequacy of such a system, for the purpose of inducing plaintiff and others to purchase B. S. & B. propane gas systems from them. That plaintiff relied upon defendants' representations aforesaid, and their skill and judgment in the purchase and installation of the system, but, without warning plaintiff of the danger involved, they negligently installed it in such manner that it was unsafe and defective because the piping was unfit for the purposes and soil in which it was laid, and was not fit for the purposes for which it was sold to defendant, and the piping and system was negligently and improperly installed, which caused the piping to corrode, rust, and fall apart, thereby permitting the dangerous propane gas supply to be discharged therefrom into his residence at a point underground, beyond plaintiff's ability to observe or anticipate. That as a direct and proximate result of such negligence and unlawful acts, propane gas was discharged from the system into plaintiff's residence in such quantities that on May 22, 1949, the gas became ignited, exploded, and completely destroyed and burned plaintiff's residence and its contents, caused his wife to suffer severe burns over her entire body which required medical and hospital care and caused her death on May 24, 1949, and caused his two minor daughters and a minor son to be severely burned and injured, requiring medical, hospital, and nursing care. Plaintiff prayed recovery from defendants of such sum as would reasonably compensate him for his damages, to wit, the loss of his residence and its contents; the medical and hospital expenses for his wife; the necessary funeral and burial expenses for her; the loss of her consortium; and the hospital, medical, and nursing expenses for his children.

Defendant B. S. & B. answered, admitting that it was a corporation authorized to do business in this state; that a fire occurred in plaintiff's residence owned by him on May 22, 1949; that plaintiff's wife died on May 24, 1949; and that plaintiff was at that time the father of two minor daughters and a minor son. Otherwise, it denied generally and alleged that the burning and destruction of plaintiff's residence and contents, the death of plaintiff's wife, and injuries to his children, were solely and proximately caused by the negligence of plaintiff and his wife and parties other than said defendant, and that the negligence of plaintiff and his wife was more than slight as compared with the negligence of said defendant. Defendant L. & B. filed an answer comparable in material respects with that of defendant B. S. & B. except that it set forth and charged specific allegations of negligence by plaintiff and his wife, which we do not deem it necessary to repeat here. Both defendants prayed for dismissal and costs.

Plaintiff's reply to such answers, insofar as important here, denied generally all material allegations therein which did not admit the allegations of his petition, and renewed the prayer of his petition.

Upon the trial of such issues to a jury, whereat voluminous evidence was adduced, it returned a verdict for defendants, and judgment was rendered thereon. Thereafter, plaintiff's motion for new trial was sustained, the verdict and judgment were set aside, and plaintiff was granted a new trial primarily upon the ground that instructions Nos. 9 and 16 with relation to contributory negligence given by the court, did not correctly state the law as to all items of damage claimed by plaintiff and were prejudicial to the claim of plaintiff or a portion thereof.

From such order and judgment defendants appealed to this court. They filed separate briefs. However, each assigned substantially, but in somewhat different language, that: (1) The trial court erred in granting a new trial upon the ground that instructions Nos. 9 and 16 were prejudicially erroneous; and (2) in any event the trial court erred in failing to sustain their respective motions for directed verdict made at the conclusion of plaintiff's evidence and renewed at conclusion of all the evidence, upon the ground that plaintiff had failed to establish by any competent evidence that defendants were negligent or that any negligence on their part was the proximate cause of the explosion and damages. Therefore,...