Hubbard v. Quality Oil Co. of Statesville, Inc., 451

• Decision Date: 23 November 1966
• Docket Number: No. 451,451
• Citation: 268 N.C. 489,151 S.E.2d 71
• Parties: Voyd L. HUBBARD, trading and doing business as Hubbard's Superette, v. QUALITY OIL COMPANY OF STATESVILLE, INCORPORATED, Quality Oil TransportCompany, a Partnership, and William J. Hamilton.
• Court: North Carolina Supreme Court

Page 71

151 S.E.2d 71

268 N.C. 489

Voyd L. HUBBARD, trading and doing business as Hubbard's Superette, v. QUALITY OIL COMPANY OF STATESVILLE, INCORPORATED, Quality Oil TransportCompany, a Partnership, and William J. Hamilton.

No. 451.

Supreme Court of North Carolina.

Nov. 23, 1966.

McElwee & Hall, North Wilkesboro, for plaintiff.

Deal, Hutchins & Minor and Richard Tyndall, Winston-Salem, for defendants.

BRANCH, Justice.

The decisive question on this appeal is whether the court erred in overruling defendants' motion for nonsuit.

The doctrine of Res ipsa loquitur is not invoked by plaintiff, nor is it available. The attic furnace, the underground tanks, filler pipes, and the entire store building were under the control of the plaintiff. The doctrine does not apply when the instrumentalities causing the injury are not under the exclusive control or management of the defendant. Nor does the doctrine apply 'where more than one inference can be drawn from the evidence as to the cause of the injury, (or) * * * where the existence of negligent default is not the more reasonable probability * * *. ' Springs v. Doll, 197 N.C. 240, 148 S.E. 251. Therefore, the plaintiff must present evidence of actionable negligence on the part of the defendant in order to carry his case to the jury. To establish actionable negligence plaintiff 'must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed the plaintiffs under the circumstances in which they were placed; and (2) that such negligent breach of duty was the proximate cause of the injury, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. * * * Negligence is not presumed from the mere fact of injury * * *. There must be legal evidence of every material fact necessary to support a verdict, and the verdict 'must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.' * * * If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed.' Lane v. Dorney, 250 N.C. 15, 108 S.E. 55; Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33; Reason v. Singer Sewing Machine Co., 259 N.C. 264, 130 S.E.2d 397.

Plaintiff, in support of his allegations, attempts to show by direct and circumstantial evidence that defendants were negligent in that their agent, Hamilton (a) attempted to deliver gasoline during the dark and prior to daylight hours, (b) attempted to deliver gasoline into underground tanks when the weather was dense, foggy and heavy, and the air was still, (c) left the vehicle unattended while delivering a hazardous and dangerous substance, (d) allowed or permitted gasoline to overfloor or leak from the filler pipes or hoses onto the driveway in large quantities, creating an extremely dangerous and hazardous condition.

Plaintiff offered direct evidence which tended to sustain his allegation that defendants left the truck and tanker unattended after starting delivery of gasoline; that the weather was dense, foggy and heavy, and the air still, and that the delivery was made prior to daylight hours. Plaintiff seeks to show by circumstantial evidence that defendants' agent negligently allowed gasoline to spill or leak in front of the store building, and that the leakage or spillage was the proximate cause of the explosion. His theory is that as the spilled gasoline evaporated during a period of ten or fifteen minutes, vapors from it traveled through a vent into the attic, where they were drawn into the fresh-air inlet of the furnace and to the open flame, thereby causing the explosion.

The only evidence of spilled gasoline near the filler pipes and in front of the store was the testimony of plaintiff's witness Shew, who testified, over defendants' objections, substantially as follows: That he was some three-quarters of a mile from the plaintiff's store when he saw a flash in the sky above the store. He immediately proceeded to the store, and arrived there about one minute later. 'I saw some guy--I don't know who he was--at the tanker. He was at the back unhooking a hose. One was already unhooked from the tanker. The other hose was already loose. It was laying beside the tank, * * * He got in his tanker and left. * * * he came back up there * * * in a short time and took the hoses out of the tank * * * we pulled one down next to the gas tank and we carried the other one across the road to the mail box.' Question by plaintiff's attorney: 'Now when you went to help him pull the pipe away--or pull the hose away, what was he doing at that time at the filler pipe? A. He pulled the hose out and was putting a cap on it.' Question by plaintiff's attorney: '* * * at the time you were there at the filler pipes, did you make an examination around the filler pipe and leading from the filler pipe down the highway? A. No, I didn't exactly make an examination. I just noticed there was some gas had run down through there. * * * There was no fire out in front of the store anywhere along that whole area at that time.'

Plaintiff also offered the testimony of Charles Harmon, who was, over defendants' objection, qualified as an expert in the field of thermo dynamics, gas dynamics, and gas combustion. Over defendants' objection, plaintiff's counsel asked him a hypothetical question as to what might or could have caused the explosion and fire. This question contained, Inter alia, the following two hypotheses: '10. That during the period that the tanker was unloading its gasoline into the storage tank the strong odor of gasoline was smelled. 11. That prior to the time that the tanker began the unloading of gasoline there was no gasoline on the ground in the area of the filler pipes or in front of the building.' In answer, Mr. Harmon said: 'It is my opinion that the explosion and resulting...