Kapros v. Pierce Oil Corporation
| Decision Date | 05 March 1930 |
| Docket Number | No. 28049.,28049. |
| Citation | 25 S.W.2d 777 |
| Parties | MANUEL KAPROS, Plaintiff in Error, v. PIERCE OIL CORPORATION. |
| Court | Missouri Supreme Court |
Walter F. Stahlhuth and Hensley, Allen & Marsalek for plaintiff in error.
(1) The plaintiff's case was properly submitted to the jury on the res ipsa loquitur theory. (a) Plaintiff pleaded and proved that a sudden ignition or explosion of gasoline occurred on the defendant's filling station premises; that said station and all the appliances therein were in defendant's exclusive possession and control; that his automobile did not explode or burn, and that nothing was done by him or any member of his party to cause the sudden ignition of the gasoline. These facts made a prima-facie showing of negligence on defendant's part under the res ipsa loquitur theory, and cast the burden on defendant to show, by the greater weight or preponderance of the evidence, that the sudden ignition or explosion of the gasoline was not due to negligence on defendant's part. Reicke v. Anheuser-Busch Brew. Co., 206 Mo. App. 246; Fitch v. Railroad, 45 Mo. 322; Newton v. Texas Co., 180 N.C. 561; Nelson v. Zamboni, 164 Minn. 314; Sistrunk v. Hauling Co. (Cal.), 264 Pac. 259; Guilford v. Foster & Davis (Okla.), 268 Pac. 299; Levin v. Railroad, 133 N.Y. Supp. 467. (b) Where the thing which caused the injury complained of is shown to be under the management of defendant or its servants and the accident is such as in the ordinary course of things does not happen, if those who have its management or control use proper care, the evidence reasonably affords an inference that the accident arose from want of care on the defendant's part. Eckhardt v. Wagner Co. (Mo.), 235 S.W. 118; Mayne v. Railroad, 287 Mo. 235; Blanton v. Dold, 109 Mo. 64; Gannon v. Gas Co., 145 Mo. 502; Fleishman v. Ice Co., 148 Mo. App. 118; Gibbs v. Light Co., 142 Mo. App. 19; Freeman v. Foreman, 141 Mo. App. 359; Johnson v. Railroad, 104 Mo. App. 588; Gallagher v. Edison Co., 72 Mo. App. 576; Seiter v. Bischoff, 63 Mo. App. 157. (c) Plaintiff's instruction which submitted the case on the res ipsa loquitur doctrine and stated that from the hypothesized facts a presumption of negligence arose against the defendant, which authorized a verdict against defendant, unless the defendant proved its freedom from negligence by the preponderance of the evidence, properly stated the law applicable to the case. Carlson v. Wells (Mo.), 276 S.W. 26; Keuther v. Light Co. (Mo. App.), 276 S.W. 105; Price v. Railway Co., 220 Mo. 435. (2) The trial court erred in giving defendant's instruction numbered 2. This instruction was in direct conflict with the instruction given for plaintiff and was incorrect, in that it required plaintiff to prove to the jury's satisfaction, by the preponderance or greater weight of the credible evidence, the facts alleged in plaintiff's petition and submitted to the jury for their consideration in the other instructions, and authorized a verdict for the defendant if the plaintiff failed to do so, or if the evidence was evenly balanced. Price v. Street Ry. Co., 220 Mo. 463; Carlson v. Wells (Mo.), 276 S.W. 26; Simpson v. Rys. Co. (Mo.), 192 S.W. 739; Porter v. Ry. Co. (Mo.), 311 Mo. 66. (3) The court erred in giving defendant's instruction numbered 3. This instruction told the jury that plaintiff was not entitled to recover, and that their verdict should be for the defendant, unless they found and believed from the evidence that defendant failed to exercise ordinary care. The instruction is the very reverse of the proposition stated in plaintiff's instruction, and was improperly given. Authorities under Point 2.
T.M. Pierce and Samuel H. Liberman for defendant in error.
(1) The doctrine of res ipsa loquitur is not applicable to the case proved by plaintiff. There being no evidence of negligence, defendant was entitled to a directed verdict. State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 427; Pointer v. Const. Co., 296 Mo. 104; Beebe v. Transit Co., 206 Mo. 419; Fuchs v. St. Louis, 167 Mo. 620; 45 C.J. 1211. (2) In res ipsa cases the burden is always upon the plaintiff to prove the existence of the facts from which the presumption of negligence is to be drawn. Instruction 2 correctly placed this burden upon plaintiff. Authorities, supra; Pronnecke v. Westliche Post. Pub. Co. (Mo. App.), 291 S.W. 139; 45 C.J. 1210. (3) Instruction 3 correctly declared the law, since there can be no recovery, even in res ipsa cases, unless the jury finds negligence on the part of the defendant. Authorities, supra; Scott v. Davis, 216 Mo. App. 541; 45 C.J. 1223.
Action for damages laid at $25,000 for personal injuries sustained by the plaintiff from a fire which occurred at defendant's oil filling station while plaintiff was there purchasing gasoline. Plaintiff lost on the trial below and judgment went against him on the verdict. The case is here on a writ of error issued at his instance. The sole error assigned is the giving of two instructions for the defendant which cast the burden of proof on the plaintiff. It is claimed the doctrine of res ipsa loquitur applied to the case, and that these instructions were therefore wrong, because under that doctrine the burden was on the defendant to explain the casualty. The issue presented requires a rather full statement of the facts.
After setting out matters of inducement the petition charged general negligence as follows:
"That the defendant carelessly and negligently caused and permitted one of its tanks of gasoline and pumps and hose and premises adjacent thereto, then and there under defendant's sole and exclusive control, and close to which plaintiff was standing while engaged in purchasing gasoline from defendant as aforesaid, to suddenly become ignited and explode and burn, causing and permitting the flames to come in contact with and against and upon plaintiff's body and clothing, whereby and as a direct result of which plaintiff was painfully and seriously burned," etc.
The answer contained a general denial and a further allegation that the injuries, if any, suffered by plaintiff were caused by his own negligence, in that plaintiff, while on the premises of defendant and while gasoline was being put into the tank of plaintiff's automobile struck a match or matches and thereby caused gasoline to ignite. The reply was a general denial.
The plaintiff testified, in substance, that at about 5:30 or six o'clock on the evening of December 2, 1923, he stopped his automobile at defendant's oil filling station, located on the southwest corner of Twelfth Street and Chouteau Avenue in the city of St. Louis. With him were a Mrs. Holloway, Mr. and Mrs. Pappas and their two small children and a Miss Summers. There were two pumps at the station, in line north and south with each other, and some twenty feet apart, and two driveways for motor vehicles, one being on the east side of the pumps and the other on the west side of them. Plaintiff, approaching from the south on Twelfth Street, drove in over the eastern driveway leading from Twelfth Street and stopped his car headed north with its rear end close to or one and a half feet beyond the north pump and some two and a half to three feet out from the same.
It was about dark and the incandescent lights of the station building were on. The plaintiff shut off his engine and turned out the lights on the car. He next got out of the driver's seat on the west side of the car and went around the car and pump to the right or east side of the car. Upon being asked by the station attendant how much gasoline he wanted, he said (so he testified), "Fill 'em up." The attendant removed the filler-cap located at the right rear end of the body of the car, inserted the hose-nozzle into the tank, returned to the pump and proceeded to discharge gasoline from the pump into the tank through the connecting hose. Plaintiff was then on the right side of the automobile and two or three feet back of it, facing east or northeast.
After standing there a few minutes the plaintiff discovered fire blazing about his feet and upon the ground back of him. The driveway had a cinder or gravel floor, "something like that." The fire started on the ground near the pump and came toward him. He couldn't say whether the ground was wet or dry before the fire started. He seized the hose, drew it out of the car tank, and, to prevent it from communicating fire to the pump, threw it down upon the ground, shouting to the occupants of the car to get out. The bottom of his trousers were on fire and he was severely burned on his leg. He testified the fire he saw was all-around upon the ground, but that he saw none on the pump, the hose or the gasoline tank; that he lighted no matches and was not smoking; and that he heard no explosion.
Mrs. Holloway, who had remained in the car, testified she noticed the reflection of fire in the windshield and then heard plaintiff call to them to jump out. She immediately did so. At that time the fire was three feet back from the car and was running towards it on the ground. She heard no explosion, saw no fire on the pump or anywhere except on the ground.
Albert Amad, who saw the fire from his store on Chouteau Avenue, ran across the street to plaintiff and extinguished the fire upon him. He testified the fire was on the ground north of the north pump and back of the automobile and extended perhaps seven feet toward Chouteau Avenue. He heard no explosion and saw no fire on the pump, the hose or gasoline tank, or anywhere except as stated.
Tom Pappas left the automobile when he heard plaintiff's warning. The fire was then three or four feet in back of plaintiff's automobile, but the machine was not on fire. He said there was no explosion and that the only fire he saw was on the ground.
The testimony for the defendant was, in substance, as follows:
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