Fredericks v. Atlantic Refining Co.

• Decision Date: 05 January 1925
• Docket Number: 38
• Citation: 127 A. 615,282 Pa. 8
• Parties: Fredericks v. Atlantic Refining Co., Appellant
• Court: Pennsylvania Supreme Court

127 A. 615

282 Pa. 8

Fredericks v. Atlantic Refining Co., Appellant

No. 38

Supreme Court of Pennsylvania

January 5, 1925

Argued November 25, 1924

Appeal, No. 38, Jan. T., 1925, by defendant, from judgment of C.P. No 5, Phila. Co., Dec. T., 1921, No. 2874, on verdict for plaintiff, in case of Harry Fredericks v. Atlantic Refining Company. Affirmed.

Trespass for personal injuries. Before BALDRIGE, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $35,000, on which judgment was entered for $30,000. Defendant appealed.

Errors assigned were, inter alia, various instructions, ruling on evidence, and refusal of new trial asked for on ground of excessiveness of verdict, quoting record.

The judgment of the court below is affirmed.

Francis Shunk Brown, with him A. Carson Simpson, Thomas F. Gain, and Ira Jewell Williams, for appellant. -- Under the circumstances shown, it might reasonably be inferred that plaintiff's injuries resulted from any one of several causes, for some of which defendant would not be legally responsible: East End Oil Co. v. Torpedo Co., 190 Pa. 353; Ott v. Boggs, 219 Pa. 614; Baker v Irish, 172 Pa. 528; Coshulich v. Oil Co., 122 N.Y. 118; Alexander v. Water Co., 201 Pa. 252.

Plaintiff was guilty of contributory negligence as a matter of law Mitchell v. Stewart, 187 Pa. 217.

It was error to admit evidence that other drivers left their acetylene lights burning, while filling their gasoline tanks.

The Carlisle Tables should have been excluded: Steinbrunner v. Ry., 146 Pa. 504; Kerrigan v. R.R., 194 Pa. 98; Pauza v. Coal Co., 231 Pa. 577; Seifred v. R.R., 206 Pa. 399.

The verdict was, even as reduced, grossly excessive and manifestly beyond reason: Gail v. Phila., 273 Pa. 275; Johnson v. R.R., 278 Pa. 491; Helmstetter v. Ry., 243 Pa. 422.

Francis M. McAdams, with him William H. Wilson, for appellee. -- The case was for the jury: Koelsch v. Phila., 152 Pa. 355; Shirey v. Gas Co., 215 Pa. 399; Gudfelder v. Ry., 207 Pa. 629; Woodruff v. Painter & Eldridge, 150 Pa. 91; Bier v. Mfg. Co., 130 Pa. 446; McGuigan v. Beatty, 186 Pa. 329; Liptak v. Kurrie, 244 Pa. 117; Eldridge v. Mfg. Co., 240 Pa. 321; Dyer v. Bridge Co., 198 Pa. 182; Rapho & West Hemofield Twp. v. Moore, 68 Pa. 404.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Harry Fredericks, engaged in driving a Packard Truck between Philadelphia and New York, was severely burned on December 11, 1921, at defendant's gasoline station in Philadelphia, where he had stopped for gas. He recovered a verdict and judgment.

On the night of the accident, appellee drove his truck into appellant's yard, stopping opposite pump Number 8. He was in an enclosed cab, about five feet wide, four feet deep and four and one-half feet high, with a door (half glass) in each side. The gasoline tank was in the cab, under the seat, its opening being close to the center. The truck was equipped with two acetylene lights on the front and outside of the cab, about two feet below the top of the lower half of the windshield. The lights were lit and the upper half of the windshield was open. The lamps were ordinary acetylene lamps, made of copper, with a ridge at the top. On each side were four vent holes.

The gasoline supply was stored in large tanks under ground, and forced under air pressure through the hose attached to the pump, to supply customers. The gasoline line was equipped with two shut-off valves, one a hand valve at the pump, and the other at the nozzle of the hose, the latter being called a "trigger" valve, operated by pressing a key. It was in its normal position when closed.

When appellee arrived at the station a young lady was in charge. On requesting gasoline, the hose was handed through the window of the door on the left side of the truck. Plaintiff, after removing the cover from the tank, inserted the nozzle in the opening, pressed the key, and the tank began to fill. During the operation he faced the tank or seat, his back partly towards the windshield. He leaned down to better control the gasoline as it ran into the tank. When within three or four inches of the top he released the key to stop the flow; the valve failed to work. He called to the attendant to shut off the gasoline at the pump as the valve would not work; meanwhile the nozzle remained in the tank. The attendant, instead of shutting off the gasoline, pulled the hose and valve out of appellee's hands, while gasoline was still being forced through under a twelve-pound pressure, or ten gallons per minute. When it was jerked back gasoline was thrown over appellee's clothing, the inside of the cab, against the windshield, over the hood of the truck and on the acetylene lights. Immediately a fire started, rapidly communicating through the windshield into the cab, setting fire to plaintiff's clothing and to the gasoline vapor from the tank. The cab soon became a seething mass of flames. Plaintiff, in attempting to make his way out of the door on the right side, was prevented because of the flames and intense heat. He then attempted to get out by the window of the door on the left side; when partly through the window his strength failed and he was unable to help himself further; bystanders came to the rescue, pulling him from the car. Fire extinguishers were used to put out the flames on his clothing, after which he was taken to a hospital. These facts the jury could and did find from plaintiff's testimony.

The statement of claim contained a number of charges of negligence: that defendant did not use the necessary and proper protections in handling and selling a dangerous agency; nor did it use, maintain, repair and inspect proper and safe valves and pumps; nor did it furnish a duly qualified, competent and safe person in charge of the station; and that it failed to shut off the flow of gasoline when requested, carelessly pulling the hose from appellee's hands. From our study of the record, each charge was sustained.

Negligence is absence or want of care under the circumstances. A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business, which involve little or no risk. No absolute standard can be fixed by law, but every reasonable precaution suggested by experience and the known danger ought to be taken: Koelsch v. The Philadelphia Company, 152 Pa. 355, 362. See Shirey v. Consumers' Gas Co., 215 Pa. 399, as to the application of the rule, and Gudfelder v. Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co., 207 Pa. 629, as applying to the facts in the present case

When a person invites another to his place of business, he assumes toward the invitee certain duties, and if he negligently permits a danger of any kind to exist, which results in injury to the person invited, without negligence on the latter's part, the invitor is answerable for the consequence of such injury. Woodruff v. Painter & Eldridge, 150 Pa. 91, 95.

Appellant assails the statement that when the hose was pulled away gasoline fell over plaintiff, the windshield at his back, the hood and the acetylene lamps, thus starting the fire. It is urged that, as appellee was standing with his back to these things, it was impossible for him to see what was going on, and as his statement was in direct conflict with physical laws, or matters of such general knowledge, and as he was the only one to sustain plaintiff's case, we should consider these facts and reject this evidence; the case must therefore fall.

We do not agree with this contention or conclusion. Other circumstances appear in evidence from which causal connection may be fairly inferred. Appellee testified the gasoline was still flowing from the hose when jerked from him; it was under pressure, and the natural, probable and direct result of the act would be the discharge of gasoline from the nozzle, throwing it over the objects within reach, touching those spots described by appellee. To further sustain this and appellee's testimony, it appears the end of the hose was on fire when held by the attendant after being jerked from appellee's hands. The testimony of defendant's attendant supports to some extent what appellee contends for, as does the testimony of the witness Parker, present at the time of the accident. In further support, fire was shown to be on top of the hood. But we are not convinced appellee was necessarily prevented from seeing what occurred. He does not describe himself as standing squarely in front of the tank, but at an angle; when the hose was jerked from his hands it required but the fraction of a second, the twinkling of an eye, to instantly turn his head, and see what was going on. The evidence was proper, its credibility entirely for the jury; it is not such as would warrant a court in summarily dismissing the case.

Appellant contends that one of two causes existed to which the injury might be attributed, and for which defendant would not be responsible. Gasoline is a volatile and dangerous substance; while filling the tank, inflammable vapor was being thrown off; all the time the acetylene lamps were burning. There was, therefore a possibility, defendant asserts, that the vapor came in contact with the lamps through the partly opened windshield, causing the fire, and for this defendant was not legally liable. Aside from the evidence, by appellee and Parker, of direct contact with the stream of gasoline, other circumstances refute appellant's theory

It appears about three cubic feet of gasoline vapor was created during the time the tank was being filled. The cab was four by four and one-half by five feet, having a content of ninety cubic feet....