McArthur v. Dutee W. Flint Oil Co., Inc.

• Citation: 146 A. 484
• Decision Date: 12 June 1929
• Docket Number: No. 6564.,6564.
• Parties: McARTHUR v. DUTEE W. FLINT OIL CO., Inc.
• Court: United States State Supreme Court of Rhode Island

146 A. 484

McARTHUR

v. DUTEE W. FLINT OIL CO., Inc.

No. 6564.

Supreme Court of Rhode Island.

June 12, 1929.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Presiding Justice.

Action by Duncan J. McArthur against the Dutee W. Flint Oil Company, Inc. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted for entry of judgment on the verdict.

William H. Camfield, George Hurley, and Walter V. Moriarty, all of Providence, for plaintiff.

Clason, Brereton & Kingsley, Philip C. Joslin, and Clifford A. Kingsley, all of Providence, for defendant.

RATHBUN, J. This is an action of trespass on the case for negligence. The trial in the superior court resulted in a verdict for the plaintiff for $17,500. The trial justice denied the defendant's motion for a new trial, and the case is before this court on the defendant's exceptions as follows: To the admission of testimony; to instructions to the jury; to the refusal to instruct; to the refusal to direct a verdict for the defendant; and to the denial of the defendant's motion for a new trial.

The defendant, a wholesale dealer in motor oils and gasoline, undertook to install a gasoline pump for one Mullins, to be used in dispensing gasoline purchased from the defendant. Mullins owned a secondhand gasoline tank, which had not been used for six or seven months. The flange of the tank being too small to connect with the pump, the defendant carted the tank to the plaintiff's employer, the Wholey Boiler Works, and ordered them to cut a larger opening in the tank and weld on a flange of the proper size. Preparatory to doing the welding, the plaintiff was directed by his employer's foreman to use an acetylene torch in cutting the hole. The plaintiff commenced the work, but almost immediately after the torch was applied to the tank the gasoline fumes within exploded and the plaintiff was very seriously injured.

The defendant contends that the plaintiff cannot recover for the following reasons: (1) That the defendant was guilty of no negligence; (2) that the plaintiff was guilty of contributory negligence; and (3) that the plaintiff had accepted from his employer compensation under the Workmen's Compensation Act (Gen. Laws 1923, § 1205 et seq.).

The plaintiff contends that the defendant was negligent (1) in not removing all gasoline and fumes from the tank before delivering it to be cut and welded; (2) in ordering the work done without giving notice of the fact that the tank had contained gasoline.

There is evidence tending to show that it was the custom of oil companies to remove all gasoline and gasoline fumes from tanks before sending them to be repaired. The testimony was conflicting on the question whether the defendant gave notice to the Boiler Works that the tank had contained gasoline. Two of the defendant's employees testified that they drove into the yard of the Boiler Works to deliver the tank, and, finding no one there, one of them went to the office and left with Mr. Foote, the person in charge, a written order to do the work, and then returned to the yard and unloaded the truck in the presence of a Mr. Spencer, an employee of the Boiler Works. Spencer, who was about 17 or 18 years of age, described himself as a "boiler maker's helper." Each, of defendant's said employees testified that one of them, a Mr. Bartlett, said to Spencer: "Now, be careful, as this tank has had gasoline in it." Spencer denied that Bartlett told him that there had been gasoline in the tank.

Defendant contends that Spencer's testimony is unworthy of belief, first, because of a natural desire to avoid the blame for the accident; and, second, because he could recall very little that was said at the time. It would seem that the witnesses for the defendant on this point had just as strong a motive to color their testimony for the purpose of avoiding blame. We cannot ignore the testimony of Spencer. The conflict between his testimony and that of the two men who delivered the tank presented an issue of fact for the jury, and they evidently believed Spencer. It is unnecessary to discuss this point further. We will, however, say that it is by no means clear that the defendant was free from negligence, even if it were admitted that Bartlett warned Spencer as to the use which had been made of the tank. The information was not given at the office, where the order for the work was given. It does not appear that Spencer was a foreman or a superior in any capacity, whose duty it was to receive and forward such warnings to the employer. So far as appears, Spencer was a mere fellow servant with the plaintiff. A warning to such a person, who has no duty to receive and forward such information, is insufficient. See 1 Shear. & Red. on Neg. (6th Ed.) 644.

It is urged by defendant that plaintiff was guilty of contributory negligence. "The question of contributory negligence is one for the jury, unless it clearly appears that the only proper inference from the undisputed facts is that in the circumstances of the case a person of ordinary prudence would not have acted as did the plaintiff." Jacobson v. O'Dette, 42 R. I. 447, 108 A. 653. The employer's foreman, in directing the plaintiff to do the work, pointed out to him the place on the tank for the hole, which the foreman, either expressly or impliedly, ordered the plaintiff to cut with an acetylene torch. The plaintiff testified that there was nothing about the appearance or odor of the tank to indicate that it may have been used for the storage of gasoline, and that, judging from the color of the tank and the couplings attached thereto, he decided that it was a water tank. The foreman did not warn him that the tank had contained gasoline, because he did not know that fact. When the plaintiff was ordered to commence the work, he was told that it was a rush job. He testified that he had done similar work on gasoline tanks; that the gasoline and fumes had apparently been removed from all of said tanks, because he did nothing to render them safe, and no explosion occurred when the torch was applied.

Before the accident the Wholey Boiler Works had never done anything to remove gasoline and fumes from the gasoline tanks which they had repaired. We have already referred to the testimony tending to show that it was the custom of oil companies to remove all gasoline and gasoline fumes from tanks before having them repaired. Considering all the testimony upon the question, we. cannot say that a man of ordinary prudence would not have acted as did the plaintiff. Therefore whether the plaintiff was guilty of contributory negligence was a question for the jury.

We will next consider the question whether the plaintiff is barred from recovery by reason of the fact that he had received from his employer, or the latter's insurer, compensation as provided by the Workmen's Compensation Act. Section 20 of article 3, chapter 92, G. L. 1923, provides as follows:

"Where the injury for which compensation is payable under this chapter was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may take proceedings both against that person to recover damages and against any person liable to pay compensation under this chapter for such compensation, but shall not be entitled to receive both damages and compensation; and if the employee has been paid compensation under this chapter, the person by whom the compensation was paid shall be entitled to indemnity from the...