Mooney v. Monark Gasoline & Co.

• Decision Date: 16 September 1927
• Docket Number: No. 25934.,25934.
• Court: Missouri Supreme Court
• Parties: MOONEY v. MONARK GASOLINE & CO.

298 S.W. 69

MOONEY v. MONARK GASOLINE & CO.

No. 25934.

Supreme Court of Missouri, Division No. 1.

September 16, 1927.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Walter T. Mooney against the Monark Gasoline & Oil Company. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

E. H. McVey, Samuel R. Freet, and Lester G. Seacat, all of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore, George J. Mersereau, and Richard S. Righter, all of Kansas City, for respondent.

SEDDON, C.

Action to recover damages for personal injuries sustained by plaintiff and alleged to have resulted from the negligence of defendant while plaintiff was in Its employment. The defendant is a corporation engaged in the sale of gasoline and lubricating oils, for which purpose it maintained and operated a number of gasoline and oil filling stations at several different locations in Kansas City, Mo., one of said stations being located near the intersection of Twenty-Ninth street and McGee trafficway. Plaintiff was in the employment of defendant as an attendant at the latter station, and was painfully and severely burned about the upper part of his body when his clothing was ignited on the afternoon of February 28, 1922.

The substantive facts alleged in plaintiff's petition are: That defendant maintained at said filling station two pumps, located on a concrete base or platform extending north and south, one pump being at the north end, and the other pump being at the south end, of said base; that each of said pumps was connected with a large tank or reservoir of gasoline, and each pump was fitted with a cylindrical gasoline container, made of glass, and having a capacity of approximately 10 to 12½ gallons, with a gauge on the side thereof by which to measure the gasoline sold to customers therefrom; that there was a large hose connected with each container, at the end of which hose there was attached a nozzle and valve by which the gasoline, which flowed by gravity from the container when the valve was open could be shut off upon closing the valve; that at the time of plaintiff's injury, and long prior thereto, the nozzle and valve attached to the hose leading from the south pump and container were defective so that the valve could not be controlled and would frequently open while plaintiff was handling the same, thereby causing plaintiff's clothing to be sprayed with gasoline; that plaintiff was required to maintain a fire in a coal stove in an inclosed room in said station as a part of his duties; that, prior to his injury, plaintiff "had complained to defendant about the said defective valve and set screw, and about his clothing being sprayed with gasoline as aforesaid; that defendant promised to repair said valve and set screw, and assured plaintiff that there would be no danger of injury therefrom or of his clothes catching fire from said stove if he would remain in the open air for a short time before working about said stove;" that, on February 28, 1922, plaintiff used the hose on the south pump or container for the purpose of filling the automobile tank of a customer; that, because of the defective condition of the nozzle and valve of said hose, gasoline was caused to escape therefrom upon plaintiff and his clothing; "that plaintiff remained in the open air a considerable time before going into the inclosed room where the said stove and fire was located, and avoided doing any work about said stove until his clothing was apparently free from gasoline; that it was a cold, snowy day, the fire in the stove had gotten low, and said room was becoming cold; that plaintiff, in performance of the duties of his said employment, went to the said stove, opened the door thereof, and was preparing to replenish the fuel therein when his clothing, as the result of having been sprayed with gasoline as aforesaid, ignited, he became enveloped in flames and was severely burned, causing the bodily injuries hereinafter more particularly described." The petition charges defendant with negligence in these five respects:

"(1) In furnishing him, as aforesaid, with a pump with a defective and insecure valve at the end of the hose, which would permit gasoline to escape and spray his clothing when defendant knew, or by the exercise of ordinary care could have known, that plaintiff in the performance of his duties was required to work about said lighted stove, and to keep the fire burning therein, and that plaintiff's clothing, on account of the gasoline fumes thereon, might become ignited.

"(2) In requiring plaintiff to work in an inclosed room and to keep a fire burning in a stove located in said room after plaintiff's clothes had been recently sprayed with gasoline, as aforesaid, as defendant knew, or by the use of ordinary care could have known.

"(3) In failing to warn plaintiff of the danger of going into proximity of fire after his clothes had been recently sprayed or saturated with gasoline, as aforesaid, even after his clothes had become apparently dry, and of the likelihood or danger of gasoline fumes remaining in plaintiff's clothing sufficiently to cause the same to become readily ignited after having been recently sprayed or saturated with gasoline, even though apparently dry.

"(4) In assuring plaintiff after he had made complaint to defendant of the defective condition of said valve and set screw that, even though his clothing had been recently sprayed with gasoline, there was no danger in his working about said stove and fire, if he would first remain in the open air for a short time.

"(5) In failing to repair said defective valve and set screw after plaintiff had brought the defect therein to defendant's attention, and after defendant had often promised to make said repair."

The answer is a general denial, and states further that:

"The accident and injuries therein described, if any, were caused and contributed to solely by the carelessness and negligence of the plaintiff herein."

The reply is a general denial.

Plaintiff's evidence tends to show that he was about 27 years of age at the time of his Injury, and had been in the employment of defendant, as a filling station attendant, for about 2 years and had been employed at the particular station in question for about a year. The station was on the west side of McGee trafficway and consisted of an inclosed building, containing several small rooms, in front of which building was a north and south double driveway under a canopy. In the center of and dividing the driveway was a concrete base or platform, upon which were mounted two gasoline pumps or containers, about 6 feet in height, one at the north end, and the other at the south end, of the platform. Each pump had a 12½-gallon glass container on the top, from the bottom of which container led a hose by means of which the tanks of automobiles were filled, the gasoline flowing from the container by gravity through the hose and into the automobile tank below. The hose was always filled with gasoline, as the containers were usually refilled by means of the pump whenever 10 gallons of gasoline were sold from the container, and, if not immediately refilled, there usually remained approximately 2½ gallons of gasoline in the bottom of the container and the hose connected therewith. The hose itself contained approximately three-fourths of a gallon of gasoline. The gasoline was released from the hose by opening a valve in the nozzle attached to the end of the hose. For several weeks prior to plaintiff's injury, the plunger and set screw which controlled the opening and closing of the valve in the nozzle, of the hose leading from the south pump or container had been defective and out of repair in that the set screw had been broken off and the plunger was worn and did not fit snugly into place in the valve, as a consequence of which defective condition, on several occasions prior to plaintiff's injury, a slight jar would cause the plunger to open and allow the gasoline to escape from the hose when hung upon a hook or receiver upon the pump, and plaintiff testified that he had been sprayed or wet with gasoline a number of times from this source. The evidence tends to show that plaintiff and another attendant of the station, some time prior to plaintiff's injury, had complained of the defective condition of the nozzle valve to two of their superiors, vice principals of defendant corporation; namely, one Smith, its president and general manager, and one Flaherty, who had charge of the service and upkeep of the equipment of defendant's filling stations. Respecting his conversations with Mr. Smith, defendant's president and general manager, and with Mr. Flaherty, plaintiff testified:

"I know that I spoke to him (Smith) three or four times, and I spoke to him three or four days before I was burned. I showed Mr. Smith, I called his attention to it, how it was worn, the valve, and I showed him how the plunger went into the little hose I have spoken of before, through the cap that screws on to the valve, and showed him how easily it could be wiggled around, and also showed him how, when it came open, it would let the gasoline out, and showed him the set screw, the condition of having that, how it would not keep the plunger in place, why it could not be operated unless you opened up your set screw, loosened it up. I told him that I had gasoline on my clothes several times, and the thing was in the habit of coming up, and what he thought about keeping up the fire if I should get gasoline on my clothes.

"Q. Now, when you told him those things, what did he (Smith) say? A. He told me to— he said stay outside for a while if I got any on my clothes, and there would be no danger; he said, `You know you got to keep the building warm this cold weather.'

"Q. What, if anything, did he say about your keeping up the fire in the stove after you were wet with...