Howard v. Texas Co.

• Decision Date: 28 June 1933
• Docket Number: 630.
• Parties: HOWARD v. TEXAS CO. et al.
• Court: North Carolina Supreme Court

169 S.E. 832

205 N.C. 20

HOWARD v. TEXAS CO. et al.

No. 630.

Supreme Court of North Carolina

June 28, 1933

Appeal from Superior Court, Buncombe County; Alley, Judge.

Action by C. R. Howard, Jr., against the Texas Company and others which was originally tried in the county court and nonsuited. On appeal to the superior court, the judgment was reversed and the cause was remanded for trial, and defendant the North Carolina Oil Company appeals.

Affirmed.

Where res ipsa loquitur rule applies, evidence of physical cause of accident is sufficient to carry case to jury on bare question of negligence.

Where res ipsa loquitur doctrine applies, jury may, but is not compelled, to infer negligence from fact of explosion.

The plaintiff is a citizen and resident of Tennessee. The defendant Texas Company is a corporation organized and existing by virtue of the laws of the state of Delaware, and is duly authorized to conduct business in Buncombe county. The defendant North Carolina Oil Company is a North Carolina corporation, and was engaged in the business of operating a filling station in Buncombe county at the northeast corner of Broadway and Walnut streets in the city of Asheville, under a license from the Texas Company. The defendant E. G. Lee was manager in charge of the business of the North Carolina Oil Company.

On March 31, 1931, the plaintiff, a traveling salesman registered as a guest at the Webster Hotel in Asheville. This hotel is located at the southeast corner of Broadway and Walnut streets. Across the street from the hotel was a filling station, operated by the defendant North Carolina Oil Company which was engaged in selling petroleum products of the Texas Company. The plaintiff was the owner of a Dodge automobile, and, when he registered at the hotel, parked his car on the south margin of Walnut street directly opposite said filling station. At about 11 o'clock on the night of March 31, and after the filling station had been closed for the day's business, "there occurred upon the premises of said filling station a terrific explosion, which said explosion tore off a section of iron pipe which was an old fill pipe, extending some four or five feet above the ground and led into the gasoline tanks of the filling station located underneath the ground. That said pipe was an iron pipe about two inches in diameter and the section blown off was from two to three feet in length. That the force of the explosion broke said pipe into numerous fragments ranging in size from a piece of about the size of a human hand down to smaller fragments about the size of small pebbles. That the said fragments of iron pipe scattered in various directions and numerous fragments were hurled directly across the street to where the plaintiff's car was parked, striking plaintiff's car and severely damaging it, in that the glass in the doors was broken, several holes were punctured in the body of the car, the gasoline tank was punctured. *** That said car of plaintiff at the time of the explosion was practically new." Other evidence tended to show that the force of the explosion broke several windows in the hotel and that one fragment of iron was blown through a window on the second floor of the hotel, lodging in the ceiling of one of the rooms. "That the force or concussion of said explosion was so violent that it threw some of the guests of the hotel out of their chairs in which they were sitting in the lobby of the hotel at the time of the explosion."

A deputy fire insurance commissioner, witness for the plaintiff, was asked the following questions: "Q. Do you have an opinion satisfactory as to whether the explosion occurred inside the storage tank or inside the pipe, and, if so, give that opinion? A. The fragment just referred to was cracked or split on the inside of the pipe, and from the condition of said fragment the explosion occurred...