Hansen v. Standard Oil Co. of California

• Citation: 55 Idaho 483,44 P.2d 709
• Decision Date: 30 April 1935
• Docket Number: 6165
• Parties: CHARLES HANSEN, Respondent, v. STANDARD OIL COMPANY OF CALIFORNIA, a Corporation, and C. R. NELSON, Appellants
• Court: United States State Supreme Court of Idaho

44 P.2d 709

55 Idaho 483

CHARLES HANSEN, Respondent, v. STANDARD OIL COMPANY OF CALIFORNIA, a Corporation, and C. R. NELSON, Appellants

No. 6165

Supreme Court of Idaho

April 30, 1935

EXPLOSIVES - PERSONAL INJURY - PROXIMATE CAUSE - CONTRIBUTORY NEGLIGENCE-CUSTOMARY CONDUCT-KNOWLEDGE OF HIDDEN DANGER-QUESTIONS FOR JURY-DAMAGES-LOSS OF BUSINESS-PLEADING AND ISSUES-VARIANCE-APPEAL-EXCESSIVE DAMAGES-NEW TRIAL.

1. Whether nonsuit or directed verdict for defendants in personal injury suit should be given on ground of plaintiff's contributory negligence depends on whether evidence so conclusively shows such negligence as to bar recovery as matter of law or whether reasonable minds might differ as to proper conclusions therefrom.

2. Contributory negligence of mechanic, suing oil company for injuries caused by explosion of gasoline and fumes thereof when he applied acetylene torch to gasoline tank which defendants employed him to repair by welding, in failing to prepare it for repairs, held for jury as against contention that he did not allege or prove oil companies' custom to prepare such tanks for repairs.

3. Whether mechanic, suing oil company for injuries caused by explosion of gasoline and fumes thereof when he applied acetylene torch to gasoline tank which defendants employed him to repair by welding, could or should have detected odor of gasoline, and such odor indicated, or should have indicated, to him that tank had not been sufficiently cleaned, held for jury.

4. Whether mechanic, suing oil company for injuries caused by explosion of gasoline and fumes thereof when he applied acetylene torch to gasoline tank, which defendants employed him to repair by welding, acted like reasonably prudent man in relying on oil company's custom or usage of cleaning such tanks before having them repaired, held for jury.

5. Whether proximate cause of injuries to mechanic by explosion of gasoline fumes in tank, which he was employed to repair by welding, was his application of flaming acetylene torch thereto, with knowledge that it contained such fumes, or employer's negligence in failing to clean tank before having it repaired, held for jury, in view of mechanic's testimony that he did not know of such fact.

6. Questions to plaintiff as to how much his business and income was diminished after injuries sued for and his answers that he was out $200 monthly for eight months, held improper as not responsive to allegations of complaint respecting his inability to attend to business.

7. Admission of plaintiff's testimony, not responsive to allegations of complaint, as to amount of his business loss after injuries sued for, held not to require reversal of judgment on verdict for full amount prayed; all prejudice to defendants being removable by eliminating such amount from verdict and judgment, without impairing remainder.

8. Verdict, awarding $23,100 damages to forty-four year old mechanic and garage operator for serious burns on chest arms, face, neck and ears, leg fractures, confinement to bed for seven weeks, followed by use of crutches for five or six weeks, scars, tenderness of hands, loss of strength in hand and leg, and permanent traumatic neurosis, causing fifty per cent disability, held not excessive.

9. Affidavits as to reason for attitude of person alleged to have made statement set out in affidavits supporting defendants' motion for new trial on ground of newly discovered evidence and such person's bad reputation for truth and veracity, held proper for impeachment purposes (I C. A., sec. 16-1209).

10. Granting of new trial on ground of newly discovered evidence is within trial court's discretion.

11. Trial court's ruling on motion for new trial should not be disturbed on appeal, where record shows no abuse of discretion.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. D. H. Sutphen, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed in the amount of $ 21,500. Costs to respondent.

Paris Martin, for Appellants.

Contributory negligence may be a question of both law and fact. Where it becomes a question of fact, of course, it would have to be proven as a defense, but, where the contributory negligence appears on the face of the complaint, or where the facts are established by undisputed evidence, and where only one inference can reasonably be drawn therefrom, then the question is one of law for the courts. (Wheeler v. Oregon R. R. & Nav. Co., 16 Idaho 375, 102 P. 347; Goure v Storey, 17 Idaho 352, 105 P. 794.)

Plaintiff's act in putting a flaming torch in close contact with the tank which he knew contained gasoline fumes was the proximate cause of the injury. (Pilmer v. Boise Traction Co., 14 Idaho 327, at p. 341, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254; 22 R. C. L. 113, 114; Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256; Aetna Ins. Co. v. Boon, 95 U.S. 117, 130, 24 L.Ed. 395, 399.)

As an element of damage for personal injury, it is improper to allow a witness to state in general terms the damage that was done to plaintiff's business. (4 Sutherland on Damages, 4th ed., 4965, 4723; Johnson v. Manhattan Ry. Co., 52 Hun, 111, 4 N.Y.S. 848, 23 N.Y.S. 338.)

Walters, Parry & Thoman, for Respondent.

Appellants, knowing the tank was dangerous, were required to take every precaution that experience and the known possibilities of danger would suggest to prevent injury therefrom. (Scott v. Pacific Power & Light Co., (Wash.) 35 P.2d 749; Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N.E. 235; Snipps v. Minneapolis & St. L. R. Co., 164 Iowa 530, 146 N.W. 468; American Oil Co. v. Wells, 164 Md. 422, 165 A. 298.)

Appellants had the duty to either clean the tank or give respondent warning that it was not clean, and omission of that duty was negligence. (McArthur v. Dutee W. Flint Oil Co., 50 R. I. 226, 146 A. 484.)

The failure of appellants to warn respondent that the tank was dangerous was the proximate cause of the latter's injuries. (Guinan v. Famous Players-Lasky Corp., supra; American Oil Co. v. Wells, supra; Griffith v. Atlantic Refining Co., 305 Pa. 386, 157 A. 791.)

The question and answer as to lessened income of respondent from liability to do his usual work about his business was proper. (Singer v. Martin, 96 Wash. 231, 164 P. 1105; Heer v. Warren-Scharf Asphalt Pav. Co., 118 Wis. 57, 94 N.W. 789; Simmons v. Leighton, 60 S.D. 524, 244 N.W. 883.)

GIVENS, C. J. Budge, J., concurs in conclusion, Morgan and Ailshie, JJ., concur. Holden, J., dissents.

OPINION

GIVENS, C. J.

Appellant Standard Oil Co., prior to August 20, 1932, sold to Dr. C. W. Dill in Shoshone two underground gasoline tanks to be used in connection with a service station being erected by the doctor, the tank in question herein being about four feet in diameter and seven feet long. After the tanks were delivered and lying on the ground near where the service station was being constructed, Thomas, employed by Dr. Dill in digging the pit for the tanks and assisting in the erection and preparation of the service station, discovered a small crack some two or three inches long and about one-half inch wide near the end of one of the tanks. He notified Dr. Dill, who communicated with the company, which sent Mr. C. R. Nelson, district manager of the territory including Shoshone, and Mr. Boehm, then a salesman for the company from Twin Falls, who employed respondent to repair the tank by welding. The tank was a second-hand tank containing a small amount of gasoline and fumes which, when respondent applied his acetylene torch, exploded, burning approximately one-third of the surface of his body and head and breaking his left leg, for which he sought and recovered in this action damages in the sum of $ 23,100.

Various assignments of error bring up the first and most important point in the case involving the defense of contributory negligence which appellants contend so conclusively appears from the record that a nonsuit or directed verdict should have been given.

Appellants concede that the testimony most favorable to respondent and all reasonable inferences to be drawn therefrom affords the basis for the consideration of this question, and that all evidence contradictory thereof under the rule is to be disregarded; they thus concede that we may approach the problem on the assumption that neither Nelson, Boehm nor anyone else told respondent the tank was a used one and had not been prepared by steaming or having been filled with water or that respondent in fact knew such to be its condition. (Though there was evidence to the contrary.) It is likewise conceded by respondent that he did not ask or investigate as to the previous or present condition of the tank.

What respondent knew or should have known from the appearance of the tank and all other circumstances bearing upon this situation are best presented by the following paraphrased narrative of respondent's own testimony:

(Direct Examination.)

"Not generally in the welding business, had it (welding outfit) for use in my own business, had practiced it (welding) since 1912 (accident 1932) did mechanical work in aviation during war and superintended same. Noticed two tanks, Nelson and Boehm asked if I could weld tanks, showed me crack, two or three inches long, barely visible, filler pipe three inches in diameter screwed in close by. Didn't tell me what had been put in tank, no one else told me. Thomas and Green at the time started to weld close to tank."

(Cross-examination.)

"Skilled garage mechanic, don't know how many gasoline tanks repaired in 25 years, learned from experience repair of gasoline tank dangerous. Didn't know this was gasoline...