Morrison v. Lee
| Decision Date | 15 November 1907 |
| Citation | 113 N.W. 1025,16 N.D. 377 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ward county; Goss, J.
Action by James T. Morrison against P. O. Lee. Judgment for plaintiff, and defendant appeals.
Reversed.
Judgment of the district court reversed, and action dismissed.
James Johnson and Guy C. H. Corliss, for appellant.
Where the negligence is violation of statutory or municipal law proximate cause must be shown. 21 Am. & Eng. Enc. Law, 480; 1 Sher. & Redf. Neg. 27; 1 Thompson on Negligence, 210.
Negligence must be sole cause of injury. Elliott v. Allegheny, etc Co., 54 A. 278; Afflick v. Bates, 43 A. 539; The Saratoga 36 C. C. A. 208; Loftus v. Dehail, 65 P. 379; Rider v. Syracuse, etc., Co., 63 N.E. 836; Thompson on Negligence, 145; France v. Head, 42 S.W 913; Laidlaw v. Sage, 52 N.E. 679; Louisville Gas. Co. v. Kaufman, 48 S.W. 434.
When, between defendant's act and plaintiff's injury, a third cause intervenes, defendant's act is the remote, not direct cause of the injury. Stone v. Boston, etc., Ry. Co., 51 N.E. 1, 21 Am. & Eng. Enc. Law, 489; 1 Thompson on Negligence, 57; Sheridan v. Bigelow, 67 N.W. 732; Deisenrieter v. Kraus-Merkel Malting Co., 72 N.W. 735; Cole v. Ger. S. & L. Soc., 124 F. 113; Laidlaw v. Sage, supra; Cochran v. Railway Co., 39 A. 296; Koch v. Fox, 75 N.Y.S. 913; Niles v. Ry. Co., 43 N.Y.S. 751; Mo. P. Ry. Co. v. Columbia, 69 P. 338; Chicago, etc., Ry. Co. v. Harton, 81 S.W. 1236; Glassey v. Worcester, etc., Co., 70 N.E. 199; Leeds v. N.Y. Tel. Co., 70 N.E. 219; Claypool v. Wigmore, 71 N.E. 509; McFarlane v. Town of Sullivan, 74 N.W. 559; Strobeck v. Bren, 101 N.W. 795; Fishburn v. Burlington & N.W. Ry. Co., 98 N.W. 380; Kingsley v. Bloomingdale, 67 N.E. 333.
LeSueuer & Bradford (Tracy R. Bangs, of counsel), for respondent.
The question of negligence was for the jury. Vindicator Consol Min. Co. v. Firstbrook, 86 P. 313; Fernadez v. Sac City Ry., 52 Cal. 45; Schubert v. Clarke, 15 L. R. A. 818; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Fuchs v. St. Louis, 34 L. R. A. 118; Hourigan v. Nowell, 110 Mass. 470; Siemers v. Eisen, 54 Cal. 418; Ives v. Welden, 54 L. R. A. 854.
Court must assume that plaintiff is not negligent. Smith v. Chicago Ry. Co., 55 N.W. 717; Kelly v. Anderson, 87 N.W. 579.
On February 6, 1906, plaintiff recovered a judgment against the defendant in the district court of Ward county in the sum of $ 8,023 for alleged negligence in selling to plaintiff a gallon of kerosene oil containing a small quantity of gasoline, which mixture, or, more properly speaking, the vapors formed therefrom, exploded in the can in which the same was contained while plaintiff was in the act of starting a fire, causing him serious bodily injury. The case was before this court on a former appeal, but the merits of the litigation were not considered or decided; the decision being based upon a question of practice. See Morrison v. Lee, 13 N.D. 591, 102 N.W. 223.
Plaintiff's cause of action is predicated upon the negligent and unlawful conduct of defendant in selling what plaintiff had a right to assume was standard kerosene, when the same contained a mixture of kerosene and gasoline; the evidence showing that the mixture contained eight parts of standard kerosene and one part gasoline. The defendant is clearly liable, under all the authorities, for the injury caused by the explosion, provided the proof shows that the proximate or efficient cause of such explosion was the presence of the gasoline in the oil, and that plaintiff did not by his culpable negligence directly contribute to such injuries, We therefore start with the assumption, which we think is too plain for discussion, that defendant was guilty of gross negligence as a matter of law in placing this mixture upon the market for sale to his customers, especially without acquainting them of its true character. It does not follow, however, that this negligence on defendant's part was actionable unless it affirmatively appears that it operated to cause injury to some one; and the person asserting that it did cause injury has, of course, the burden of showing such fact. Waters-Pierce, etc., Oil Co. v. Deselms (Okl.) 89 P. 212. Applying this rule to the case before us, the burden was upon plaintiff to establish by a fair preponderance of the evidence that this explosion and consequent injury would not have happened under the facts in this case had it not been for the presence of the gasoline in the oil. Plaintiff concedes this burden to be upon him, but he most vigorously contends that the trial court under the state of the proof, was justified in submitting this question to the jury. Even if this contention were sound, we would be unable to see how the instruction of the trial court upon this issue could be upheld. Question 28 of the special verdict embodied this issue as follows: "Would an explosion have resulted in the oil can if the oil poured by plaintiff the second time in his stove had been kerosene oil of standard test, when measured by flash test at 120 degrees Fahrenheit?" The burden was upon the plaintiff to establish the negative of this issue, but the court charged the jury with reference thereto as follows: This instruction was clearly erroneous. This is a question, however, not involving the merits, and, if we can do so, we deem it only justice to both parties to dispose of this appeal upon the merits, and thus end a long drawn out and necessarily expensive litigation.
Whether plaintiff's contention that there was sufficient evidence to warrant the submission of the case to the jury upon the question as to the presence of the gasoline in the oil being the proximate cause of the explosion is sound, it is unnecessary for us to determine, as we are fully convinced that plaintiff's own voluntary and reckless conduct as detailed by his own testimony stands as an insurmountable barrier to his recovery in this action; and, while we regret that defendant is to escape all liability for his gross misconduct, we consider it our plain duty, under the facts to hold against the plaintiff. In narrating the facts immediately connected with the explosion, plaintiff testified: This testimony, coming as it does, from plaintiff's own lips, must be accepted as a true statement of the circumstances surrounding the injury, especially as he was the only person present at the time of the explosion. It thus appears that at the time of the explosion plaintiff was in the act of pouring this oil from the can into the stove with knowledge that there was a fire blazing therein. If the explosion had occurred while he was in the act of pouring the oil into the stove the first time, it is quite probable that, under the circumstances disclosed by the evidence, we should be obliged to hold it not error to submit the question of plaintiff's due care to the jury; but,...
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