Kaumans v. White Star Gas & Oil Co.

• Decision Date: 16 December 1936
• Docket Number: 5559
• Citation: 92 Utah 24,63 P.2d 231
• Parties: KAUMANS v. WHITE STAR GAS & OIL CO. et al
• Court: Utah Supreme Court

63 P.2d 231

92 Utah 24

KAUMANS v. WHITE STAR GAS & OIL CO. et al

No. 5559

Supreme Court of Utah

December 16, 1936

Rehearing Denied July 26, 1937.

Appeal from District Court, Third District, Salt Lake County; Hon O. W. McConkie, Judge.

Action by Herman Kaumans against the White Star Gas & Oil Company and Jack W. T. Pomeroy. From a judgment for the plaintiff Jack W. T. Pomeroy appeals.

AFFIRMED.

Irvine, Skeen & Thurman and S. R. Thurman, all of Salt Lake City, for appellant.

D. N. Straup and A. J. Mays, both of Salt Lake City, and Leslie Frazer, of Washington, D. C., for respondent.

EPHRAIM HANSON, Justice. ELIAS HANSEN, C. J., and MOFFAT, J., concur. WOLFE, Justice, FOLLAND, Justice dissenting.

OPINION

EPHRAIM HANSON, Justice.

The plaintiff brought this action against defendants White Star Gas & Oil Company, a corporation, and Jack W. T. Pomeroy to recover for personal injuries suffered by him May 15, 1932, as a result of a gasoline explosion and fire. The cause was tried to a jury and resulted in a verdict in plaintiff's favor. The appeal to this court is prosecuted by defendant Pomeroy alone.

The assignments of error may be grouped under three headings: (1) Insufficiency of the evidence to sustain a judgment against defendant Pomeroy; (2) error in the admission and exclusion of evidence; and (3) error in failing to give and in giving certain instructions. The insufficiency of the evidence to sustain the verdict and judgment was raised by Mr. Pomeroy by a motion for a directed verdict and by a motion for a new trial. Both motions were denied by the trial court.

At the time plaintiff was injured the defendant Gas & Oil Company maintained a bulk gasoline plant at 203 West Thirty-Third South street in Salt Lake county and was engaged in wholesaling gasoline and oil. Pomeroy was the president and general manager of the company and had active management of its affairs. He also owned and operated a retail gasoline service station at 3180 South State street, a few blocks distant from the bulk plant. The Gas & Oil Company had no interest in this service station. Mrs. Pomeroy, wife of the defendant, also operated a retail gasoline service station situated on the same premises on which the bulk plant was located. She employed plaintiff as an attendant at this service station and he had been so employed about two years prior to the fire which occurred on May 15, 1932. The bulk plant was in charge of Ralph M. Carter, an employee of the Gas & Oil Company. He had complete charge of the wholesale department of the company and of the loading and unloading of gasoline and oil at the bulk plant, under the direction and supervision of the appellant by a railroad spur. The tank cars would be placed or "spotted" at a certain point where the rails had been insulated and where the gasoline could be transferred by means of an electrical pump from the tank cars to a large storage tank. During all of the time plaintiff was employed by Mrs. Pomeroy it had been the practice for him to assist Carter in unloading the tank cars. At times Carter assisted plaintiff with his work at the service station. A pump house had been erected by the company a few feet from the storage tank, and a pump operated by an electric motor had been installed with proper connections so that the gasoline in the tank cars, after the cars had been "spotted" on the insulated portion of the track, could be pumped from the tank cars into the storage tank. This involved making certain hose and pipe connections, which connections plaintiff had been in the habit of making or assisting in making during his employment by Mrs. Pomeroy.

The electric motor which operated the pump was bolted to the floor in the pump house. It was a three horse power, as general manager of the company. The plant was serviced open brush type. The switch which was used in starting and stopping the motor was fastened on an inside wall of the pump house and was what is known as a "knife" switch. Neither the motor nor the switch was vapor proof. The motor emitted sparks from the brushes as it was running. The switch emitted sparks when thrown in or out. There was nothing to prevent gasoline vapor from entering into either the motor or the switch and being ignited by the sparks thus created.

None of the foregoing facts are in dispute. The plaintiff's evidence tended to establish the following facts: A tank car had been "spotted" at the bulk plant for unloading a day or two before May 15, 1932. On that day Carter drove a truck to the bulk plant, and he and plaintiff were about to unload the gasoline in the tank car into the storage tank. They had considerable difficulty in getting the dome of the tank car unlocked because of the quantity of fumes that came out. When they got the dome open, the gasoline came out over the top of the car because of its great volatility. Pomeroy then appeared upon the scene. Plaintiff and Carter told him it was a peculiar gas and described it to him. Pomeroy then instructed Carter to get the "Chev" truck at Pomeroy's service station on State street, load it with gasoline direct from the tank car so as not to mix it with the gasoline then in the storage tank, and take it to his service station and mix it with the other gas he had there. He directed plaintiff to help Carter and to help make the connections, as there would be a number of them. Pomeroy then took Carter in his car to his service station, where Carter got the "Chev" truck and drove it back to the bulk plant.

The usual way to load the truck was to load the gasoline by gravity from the storage tank. Since Pomeroy had instructed them to load direct from the tank car, it became necessary to pump the gasoline into the truck. The truck had four compartments, one holding 200 gallons and the other three holding 100 gallons each. On the top of each compartment was a lid and at the bottom was an outlet. There was not enough hose to load into the top of the truck so they loaded by making a connection with each of the outlets in turn and forcing the gasoline into each compartment. Carter was in full charge and determined the method for loading the truck. Plaintiff had no voice in the matter. Carter would tell him what he (Carter) was going to do and how it was to be done, and plaintiff simply assisted him.

In loading the truck Carter stationed himself on top of the truck and plaintiff in the pump house to handle the switch. Carter would tell plaintiff when he was ready and plaintiff would throw in the switch. When the compartment was filled, Carter would tell plaintiff to throw out the switch. In this manner each compartment was filled. When the hose was disconnected from one compartment so as to connect it with another, there would be some gasoline in it which would run out. This they collected in an open tub. Some gasoline spilled over the top of the truck by "boiling over." They filled the truck and then connected the pump to the storage tank. When everything was ready Carter told plaintiff to throw in the switch. Immediately upon throwing in the switch plaintiff saw a big bolt of fire come up from the motor. The gasoline became ignited and plaintiff was severely burned. Plaintiff's evidence also tended to show that a motor and switch such as were used would give off sparks and were not of the type that would pass either city or county inspection and were not reasonably safe for use where the atmosphere contained gasoline vapors which could come in contact with the sparks; that only motors of the inclosed brush type and vapor proof switches were approved by the city and county regulations and by the National Electrical Code.

Defendant Pomeroy's motion for a directed verdict was based upon the theory that plaintiff was responsible for the manner and method used in loading the truck, and that plaintiff himself was guilty of negligence in not using a hand pump which was provided and which would have been safe, but voluntarily chose to use the electrical equipment intended only for loading from the tank car into the storage tank, the use of which was unsafe and dangerous and constituted negligence; that the equipment provided by the Gas & Oil Company was reasonably safe for whatever use within the line of work that plaintiff was doing or might be required to do while on its premises. The same point is made by defendant in his assignment of error covering the trial court's refusal to grant a new trial because of the alleged insufficiency of the evidence to sustain the verdict and judgment. It will thus be seen that so far as the sufficiency of the evidence, under defendant's theory above stated, is concerned, defendant contends, first, that plaintiff himself was guilty of negligence, and, second, that the Gas & Oil Company had fully discharged its duty to plaintiff by providing safe equipment and, therefore, defendant was free from negligence.

Upon the first proposition defendant invokes the rule that "when there are two or more methods or ways by which a servant may perform his duties, and he voluntarily chooses the most hazardous, knowing it to be such, he does so at his own risk." Fritz v. Salt Lake & Ogden Gas & Elec. Light Co., 18 Utah 493, 56 P. 90, 93.

Defendant attempted to show that he had provided a hand pump to be used to load trucks direct from the tank cars and that this was the safe method of loading trucks, while using the electric equipment was more dangerous; that plaintiff's use of the electric equipment was, therefore, negligence as a matter of law.

While we do not dispute the rule thus announced in the Fritz Case, we are convinced it cannot be here invoked as contended by defendant. As stated in 39 C. J. 862:

"To render the rule operative against the servant it is necessary that all...