Farm Service Co. v. Tobin

Decision Date09 April 1963
Docket NumberNo. 50875,50875
Citation254 Iowa 1328,121 N.W.2d 128
PartiesFARM SERVICE COMPANY, Appellant, v. Martin H. TOBIN, Appellee.
CourtIowa Supreme Court

John D. Randall, Cedar Rapids, and Kopf & Christiansen, Davenport, for appellant.

Hall & McCarthy, Davenport, for appellee.

MOORE, Justice.

On February 27, 1954 plaintiff's service station at Mt. Joy was completely destroyed by fire after a gasoline pump was pulled over. Plaintiff claims the fire was caused by defendant's negligence. The petition alleges the necessary elements of a case for tort. In count one it alleges five specifications of negligence. Count two relies on the doctrine of res ipsa loquitur. Following trial to the court judgment was entered for defendant. Plaintiff appeals. We affirm the decision.

Plaintiff asserts and argues the trial court erred: (1) in failing to invoke the doctrine of res ipsa loquitur and (2) in rendering a judgment which had no substantial support in the evidence.

Plaintiff's first witness was defendant Tobin. He testified that around noon on February 27, 1954 he drove southwest on Highway 61; made an east turn into plaintiff's station; drove between the two pumps and the building as he had done on many occasions over several years; stopped with his car headed southwest in the same location where he usually stopped to get gas and left his car from the left front door. That up to that time he was sure his car had not touched any part of the pumps or the station property. The two pumps were close together and in line with each other. The driveway was of crushed rock or gravel but that day was covered with slush and snow. He stopped his car about a foot and a half or two feet from the south pump and about 3 to 4 feet west of the station building. That as he alighted George Stichter, the regular station attendant, came out and asked if he should put gas in defendant's car; he advised Stichter he did not want gas but was there to pay his bill. He went into the station, met a new bookkeeper; visited, paid his bill; left the building and re-entered his car through the door from which he had alighted. He drove straight ahead for about 6 feet when he heard a noise which sounded like Stichter had dropped a bucket or something. When about 10 to 12 feet past the pump he felt his car drag or slow down. That he proceeded 35 to 50 feet beyond the pump, looked back through the rear view mirror, saw a flame, got out and sometime later with Stichter discovered part of the pump hose was fastened to his rear bumper. That was the first time he knew the hose was hooked on his bumper. There was no way between the time he started to drive from the building after paying his bill until he stopped and looked back in the rear view mirror that he could have seen what happened along the right side of his car. 'Q. And from the time you got into your car after you came out of the Farm Service office and until you were clear past the tanks did any part of your car touch any part of the tanks or the Farm Service Building? A. No.'

Plaintiff's second witness, Pugh, its station manager, testified he was in Muscatine at the time of the fire. He identified Exhibits 2 through 15 as photographs of plaintiff's station and the surroundings after the fire. He testified: 'Q. I believe you said the pumps were resting on concrete, is that right? A. Yes. Q. A concrete slab? A. Yes. Q. But there was no safety island as we ordinarily see in a filling station, was there? A. Well, you could see in the picture where it had been gradually filled up. Q. Would there ordinarily have been a safety island that was filled up by gravel thrown up there? A. Yes, as it worked down through the ground. Q. I want to direct your attention to the kind of hose that was on that, on those pumps on this day in question, February 27th, 1954 immediately before this accident; do you know what kind of hose was connected from the pumps so as to draw the gasoline from the pumps and put it in the automobile tanks? A. No, I don't know what kind it was. Q. You don't know what kind of a hose; was it the regular type hose on there or do you know whether a hose had been recently placed on there? A. I know another hose had been put on the gas tank. It was the same type of hose only it was longer. It was not a retractable hose. I know that they had it made. It was called 14 feet long. The pumps were 5 feet or about 5 and a half feet high. The hose hung down then--the part that came down on the ground--it would just come down in an S and down on the ground. It would leave some of the hose on the ground, how much I would not be able to say. That had been on there just a few days. Prior to that time there had been a shorter hose on there.'

Plaintiff's third witness, Goerig, an insurance adjuster, testified only regarding damages caused by the fire.

After making Exhibits 2 through 15 part of the record plaintiff then rested. Defendant offered no evidence. Following the submission the trial court prepared and filed his findings and conclusions.

The court found he should consider each specification of negligence alleged by plaintiff and that the doctrine of res ipsa loquitur was not available to plaintiff under the record made. The court found: (1) Plaintiff failed to prove negligence as specified; (2) ...

To continue reading

Request your trial
6 cases
  • Fabricius v. Montgomery Elevator Co.
    • United States
    • Iowa Supreme Court
    • 9 Abril 1963
    ... ... defendant, alleges her decedent met his death in the course of his employment for Parker Service Company, defendant was the [254 Iowa 1321] workmen's compensation insurance carrier on the employer ... ...
  • Goodsell v. State Auto. and Cas. Underwriters
    • United States
    • Iowa Supreme Court
    • 17 Octubre 1967
    ... ... Rule 334, Rules of Civil Procedure, 58 I.C.A.; Farm Service v. Tobin, 254 Iowa 1328, 1332, 121 N.W.2d 128, 130 and citations; Phoenix v. Stevens, 256 ... ...
  • Kaltenheuser v. Sesker
    • United States
    • Iowa Supreme Court
    • 7 Mayo 1963
    ... ... , 1960, he suffered personal injuries and property damage when his automobile collided with a farm tractor owned by the defendant Tolfred Sesker and operated by the other defendant, Richard Sesker; ... See also Farm Service 1043-1047 inclusive, 97 N.W.2d 900, 902-904 inclusive. See also Farm Service Company v. Tobin ... ...
  • Peterson v. Davis
    • United States
    • Iowa Supreme Court
    • 9 Abril 1963
    ... ... To paraphrase an observation in Farm Service Company v. Tobin, Iowa, 121 N.W.2d 128: Why the plaintiff who was the driver of the car, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT