Graham v. North Carolina Butane Gas Co.

Decision Date12 April 1950
Docket NumberNo. 383,383
Citation231 N.C. 680,58 S.E.2d 757,17 A.L.R.2d 881
CourtNorth Carolina Supreme Court
Parties, 17 A.L.R.2d 881 GRAHAM, v. NORTH CAROLINA BUTANE GAS CO. (two cases).

A. McL. Graham, Clinton, F. Ogden Parker, Goldsboro, and Warlick & Ellis, Jacksonville, for plaintiffs, appellants.

Butler & Butler, Clinton, for defendant, appellee.

ERVIN, Justice.

On the trial of an action, the competency, admissibility, and sufficiency of the evidence are for the court while the credibility of the witnesses, and the probative force and weight of the testimony are for the jury. Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341.

A motion for a compulsory nonsuit under the statute now codified as G.S. § 1-183 challenges the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Lea v. Bridgeman, 228 N.C. 565, 46 S.E.2d 555; Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. When the defendant moves for a compulsory nonsuit, he admits, for the purpose of the motion, the truth of all facts in evidence tending to sustain the plaintiff's claim; and the plaintiff is entitled to have the court, in ruling on the motion, to give him the benefit of every favorable inference which the testimony fairly supports. Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Reid v. City Coach Co., 215 N.C. 469, 2 S.E.2d 578, 123 A.L.R. 140. A motion for a compulsory nonsuit can not rightly be allowed unless it appears, as a matter of law, that a recovery can not be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. 53 Am.Jur., Trial, section 299. This being true, the court can not properly enter a compulsory nonsuit and thereby withdraw the case from the jury if the facts are in dispute, or if the testimony in relation to the facts is such that different conclusions may reasonably be reached thereon. Cox v. Hinshaw, 226 N.C. 700, 40 S.W.2d 358; Phillips v. Nessmith, 226 N.C. 173, 37 S.E.2d 178; Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384; Oberly & Newell Lithograph Corporation v. Clark, 214 N.C. 400, 199 S.E. 398.

The plaintiffs seek to hold the defendant liable under the doctrine of respondeat superior for injury to their property allegedly caused by the negligence of Lee, the driver of the tank truck. In consequence, the appeals from the compulsory nonsuits raise the question whether the evidence introduced by plaintiffs at the trial is sufficient to establish these three propositions: (1) That Lee was negligent; (2) that the negligence of Lee was the proximate cause of injury to the property of the plaintiffs; and (3) that the relation of master and servant existed between the defendant and Lee at the time of the injury, and in respect to the very transaction out of which the injury arose. Carter v. Motor Lines, 227 N.C. 193, 41 S.E.2d 586; Walker v. Manson, 222 N.C. 527, 23 S.E.2d 839.

The defendant maintains that the testimony negatives liability on alternative grounds. The defendant asserts initially that the plaintiffs owned, maintained, and controlled the gas range, and by reason thereof were responsible for its condition; that the fire and the resultant injury were caused by a leak in the gas range occasioned by the neglect of the plaintiffs to keep the range in repair, or by the failure of James Neal Graham to turn off the master burner; and that in consequence the testimony actually disproves the allegation of the plaintiffs that the destruction of their property was the result of the negligence of Lee. It is noted, in passing, that the suggestion that James Neal Graham failed to turn off the master burner runs counter to his positive testimony that 'all the burners were off,' which must be taken to be true in determining the propriety of the compulsory nonsuits. The defendant insists secondarily, however, that the evidence fails to make out a case for plaintiffs under the doctrine of respondeat superior, even if it be adequate to sustain a finding that the loss of the property was the proximate result of negligence on the part of Lee. This position is predicated on the theory that the testimony compels the single conclusion that Lee was employed by the defendant merely to deliver gas into the storage tank of the plaintiffs; that Lee stepped aside from that business to engage in an unauthorized act, i. e., to repair the gas range of the plaintiffs; that any negligent conduct on Lee's part occurred in the performance of such unauthorized act; and that in consequence the relation of master and servant did not exist between the defendant and Lee in respect to the transaction out of which the injury arose, i. e., the repair of the gas range.

The trial court deemed these views to be valid, and dismissed the actions on compulsory nonsuits. In so doing, it committed error, notwithstanding that the plaintiffs owned and maintained the gas range, and that Lee was authorized by the defendant merely to make delivery of its gas.

It is a scientific fact 'that gas ordinarily used for fuel is so inflammable that the moment a flame is applied it will immediately ignite with an instant explosion, if it is present in any considerable volume.' Holmberg v. Jacobs, 77 Or. 246, 150 P. 284, 285, Ann.Cas.1917D, 496. This being true, such gas is a dangerous substance when it is not under control. For this reason, the law, which is ever heedful of realities when it formulates rules to govern the conduct of men, has established these principles in respect to the liability of gas companies for injuries resulting from escaping gas:

1. A company, which deals in gas as an article of merchandise, must use reasonable care to avoid injury to others by its escape. Reasonable care is that degree of care which an ordinarily prudent person would exercise under like circumstances in managing such a dangerous agency. Barbeau v. Buzzards Bay Gas Co., 308 Mass. 245, 31 N.E.2d 522; Moran Junior College v. Standard Oil Co. of California, 184 Wash. 543, 52 P.2d 342; Barrickman v. Marion Oil Co., 45 W.Va. 634, 32 S.E. 327, 44 L.R.A. 92; 42 Am.Jur., Gas Companies, section 24. A gas company is answerable in damages under the principles governing liability for negligence if it fails to employ reasonable care to prevent the escape of gas, and if its failure in such respect is the proximate cause of injury to the person or property of another. 24 Am.Jur., Gas Companies, sections 20, 21, 22; 38 C.J.S., Gas, §§ 40, 4...

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    ...The common law, which is always heedful of realities when it formulates rules to govern conduct (Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 684-85, 58 S.E.2d 757, 761 (1950)), has established the following Gas is a dangerous substance or commodity when it is not under control. M......
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