Ives v. Welden

• Decision Date: 05 October 1901
• Citation: 87 N.W. 408,114 Iowa 476
• Parties: IVES v. WELDEN.
• Court: Iowa Supreme Court

114 Iowa 476

87 N.W. 408

IVES

v.WELDEN.

Supreme Court of Iowa.

Oct. 5, 1901.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

Action to recover for a personal injury alleged to have been caused by the negligence of the defendant. Trial to a jury, and verdict and judgment for the defendant. The plaintiff appeals. Reversed.H. L. Huff and Wesley Martin, for appellant.

C. M. Nagle and Albrook & Lundy, for appellee.

SHERWIN, J.

The plaintiff was burned by the explosion of gasoline which she was using for starting a fire, supposing it to be kerosene oil. She was at the time about 15 years of age, a member of her father's family, and assisting in the general housework. A short time before she was injured, her father went to the defendant's store with a jug, which he testified he directed the clerk to fill with kerosene oil. As a matter of fact, undisputed, the clerk filled it with gasoline, and did not label it as required by statute (section 2505). The jug was taken home by the father, and the plaintiff, supposing that it contained kerosene oil, poured some of its contents into a small can, and from there into the stove. She then lit it, when it exploded, and set fire to her clothing. The evidence is conflicting whether the father ordered gasoline or kerosene. The defendant claims that he ordered gasoline. But, as we view the matter, it does not materially affect this case one way or the other. Section 2505 of the Code provides that “no gasoline shall be sold, given away or delivered to any person in this state until the package, cask, barrel or vessel containing the same has been marked ‘gasoline.’ ” This statute is evidently for the protection of all persons in the state. It is to warn all that the substance they are handling is dangerous, and that its use requires extreme care. If the plaintiff's father had been injured by the use of the gasoline, it would then be material, perhaps, to inquire whether he ordered gasoline or kerosene; for, if he knew what the jug contained, the failure to label it would probably not constitute negligence as to him. But we have no such case, for it is absolutely beyond dispute in the record that the plaintiff herself had no knowledge that she was using gasoline, and, further, that the jug she took it from was one which was used for kerosene, and for that alone. As to her, then, the failure to label the jug as required by law was negligence per se, because it was a violation of a statutory...