Morrison v. Lee

• Decision Date: 21 December 1904
• Citation: 102 N.W. 223,13 N.D. 591
• Court: North Dakota Supreme Court

102 N.W. 223

13 N.D. 591

JAMES T. MORRISON v. P. P. LEE

Supreme Court of North Dakota

December 21, 1904

Appeal from District Court, Ward county; Palda, Jr., J.

Action by James T. Morrison against P. P. Lee. Judgment for plaintiff; defendant appeals.

Reversed.

Judgment set aside and a new trial granted.

James Johnson and Guy C. H. Corliss, for appellant.

Respondent cannot recover under chapter 128, Laws of 1901, as the statutory elements, viz: knowingly selling illuminating oil below 105 degrees Fahrenheit, are not set forth in the complaint, or proven. And further, the party predicating his recovery upon a statutory duty must show that the violation thereof was the proximate cause of his injury. 21 Am. & Eng Enc. Law, 480; 1 Sher. & Redf. on Negligence, section 27; Stone v. Boston & A. R. Co., 51 N.E. 1.

If the case is one of negligence, the burden is on plaintiff to show not only defendant's negligence but that it was the proximate cause of his injuries. 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 Rapid Transit Co., 63 N.E. 836.

The sale of the oil with gasoline in it was not the proximate cause of plaintiff's injuries. 1 Sher. & Redf. on Negligence, section 26; 1 Thomp. on Neg. sections 44, 45; 21 Am. & Eng. Enc. Law, 483, 485; 1 Sher. & Redf. on Neg. section 28; 21 Am. & Eng. Enc. Law, 489; 1 Thompson on Neg. section 57; Stone v. Boston & A. R. Co., 51 N.E. 1; Deisenreiter v. Kraus-Merkel Malting Co., 72 N.W. 735; Georgia Southern & Florida Ry. Co. v. Cartledge, 59 L. R. A. 118.

Whether the plaintiff was negligent, and whether his negligence was the proximate cause of his injury, or contributed proximately to it, is a question for the court where the facts are undisputed, and different inferences cannot be drawn. 21 Am. & Eng. Enc. Law, 509; Campbell v. Abbott, 57 N.E. 462; Neylon v. Phillips, 60 N.E. 616; Schneider v. Chicago, M. & St. P. Ry. Co., 75 N.W. 169; Piper v. N.Y., C. & H. Ry. Co., 50 N.E. 851; Brugher v. Buchtenkirch, 60 N.E. 420; Rider v. Syracuse Rapid Transit Co., 63 N.E. 836; Daley v. Kinsman, 65 N.E. 385; Ramsey v. Eddy & Sons, 82 N.W. 127; Gleason v. Boehm, 34 A. 886; Price v. Standard Life & Accident Ins. Co., 99 N.W. 887; Tuttle v. Travelers Ins. Co., 134 Mass. 175, 45 Am. Rep. 316; Shevlin v. American Mut. Acc. Ass'n, 68 N.W. 866, 36 L. R. A. 52; Cleveland, etc., Ry. Co. v. Ballentine, 84 F. 935.

If pouring explosive oil upon fire was negligence in fact, it was the proximate cause of the injury. Holmes v. So. Pac. Coast Ry. Co., 97 Cal. 161, 31 P. 834; Phinney v. Illinois Cent. Ry. Co., 98 N.W. 358; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 19 L.Ed. 65.

It is sufficient if the plaintiff's negligence was one of the proximate causes of the injury. Hickman v. Evanson, 7 N.D. 173, 73 N.W. 427; Beach Con. Neg. section 26; 1 Sher. & Redf. on Neg. section 96; 7 Am. & Eng. Enc. Law, 383; Schneider v. Chicago, etc., Ry. Co., 75 N.W. 169; Deisenreiter v. Krans-Merkel M. Co., 72 N.W. 735; Ward v. Chicago, M. & St. P. Ry. Co., 78 N.W. 442; Meyer v. Milwaukee Electric Ry. & Light Co., 93 N.W. 6; Mauch v. City of Hartford, 87 N.W. 816.

Under section 5445, Rev. Codes 1899, a special verdict was demanded and the demand complied with by the court. The object of this statute is, that the jury shall not determine through sympathy or prejudice in whose favor they wish to decide the case, and then, without reference to the rules of law or the facts, render such a general verdict. This object is thwarted, if the jury are allowed to see by the instructions of the court, or the form of the questions put, what legal bearing answers to specific questions will have upon the ultimate and general question of the defendant's liability. Yerkes v. Northern Pac. Ry. Co., 88 N.W. 33; Ward v. Chicago, M. & St. P. Ry. Co., 78 N.W. 442; Coats v. Town of Stanton, 62 N.W. 619; Musbach v. Wisconsin Chair Co., 84 N.W. 36; Baxter v. Chicago & N.W. Ry. Co., 80 N.W. 644; New Home Sewing M. Co. v. Simon, 80 N.W. 71; Mauch v. City of Hartford, 87 N.W. 816; Sladky v. Marinette Lumber Co., 83 N.W. 514.

The submission of general propositions of law, suitable only to a general verdict, tends to defeat the purposes of the law. Baxter v. Chicago & N.W. Ry. Co., 80 N.W. 644; New Home Sewing M. Co. v. Simon, 80 N.W. 71; Crause v. Chicago & N.W. Ry. Co., 78 N.W. 446; Musbach v. Wisconsin Chair Co., 84 N.W. 36; Byington v. City of Merrill, 88 N.W. 26; Cullen v. Hanisch, 89 N.W. 900.

LeSueur & Bradford, for respondent.

Plaintiff's theory is, that the statutes of this state forbid the sale of kerosene oil that will flash at a less temperature than 120 degrees Fahrenheit, also the sale of oil uninspected. The plaintiff in purchasing this oil of defendant entered into a contractual relation. The inspection laws of the state entered into their agreement. The defendant having failed to keep his agreement with plaintiff is liable in damages for a sum sufficient to compensate the latter for the damage sustained by the tortious breach of such contractual relation, provided such breach was the proximate cause of the injuries sustained by the plaintiff. If the statute fails to furnish a remedy, the common law will. Cooley on Torts, section 657.

The handling of explosives is akin to the handling of deadly poison, and the same degree of care is required. Sherman & Redfield on Negligence, section 592; Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455.

It is not contributory negligence if the plaintiff has merely not anticipated defendant's negligence. Robinson v. Western Pac. Ry. Co., 48 Cal. 409; Shea v. Potrero Bay View Ry. Co., 44 Cal. 414; Battishill v. Humphreys, 38 N.W. 581; Thurman v. Louisville & N. Ry. Co., 34 S.W. 893; Chicago, St. Louis & P. Ry. Co. v. Bills, 20 N.E. 775; Beach on Contributory Negligence, section 22; Bennett v. N. P. Ry. Co., 3 N.D. 91, 54 N.W. 314; Central R. R. & Banking Co. v. Newman, 21 S.E. 219.

Negligence, as an almost universal rule, is a mixed question of law and fact, and when the facts are doubtful in any degree they should be submitted to the jury. Fernandes v. Sacramento City Ry. Co., 52 Cal. 45; Wellington v. Dosner Kerosene Oil Co., 104 Mass. 64; Fuchs v. St. Louis, 34 L. R. A. 118; Willy v. Mulledy, 78 N.Y. 310, 34 Am. Rep. 536.

And this is true of contributory negligence. Contributory negligence is not a defense, where the defendant was charged with a statutory duty which plaintiff had a right to presume he had observed. Willy v. Mulledy, 78 N.Y. 310, 34 Am. Rep. 536; Hourigan v. Nowell, 110 Mass. 470; 1 Thompson on Negligence, section 8.

What is proximate cause of injury is usually a question for the jury. Denver T. & G. Ry. Co. v. Robbins, 30 P. 261; Siemers v. Iesen, 54 Cal. 418; Clements v. Louisiana Electric Light Co., 16 L. R. A. 43; Osborne v. McMasters, 41 N.W. 543; Tobey v. Burlington, C. R. & N. Ry. Co., 33 L. R. A. 496.

Wanton recklessness or a grossly careless disregard of the safety and welfare of the public or the rights of others is equivalent to an intentional violation of such rights. 1 Thompson on Negligence, section 20; Ives v. Welden, 54 L. R. A. 854; Hartlove v. Fox & Son, 24 L. R. A. 679; East St. Louis Connecting Ry. Co. v. O'Hara, 37 N.E. 917; 1 Thompson on Negligence, section 45; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; 1 Thompson on Negligence, sections 46, 48, 208, 239; Denver & R. G. Ry. Co. v. Spencer, 52 P. 211; Kansas Pac. Ry. Co. v. Whipple, 18 P. 730; Texas & Pacific Ry. Co. v. Carlin, 60 L. R. A. 462.

OPINION

YOUNG, J.

This is an action to recover damages for personal injuries suffered by the plaintiff through an explosion of oil which he alleges he purchased from the defendant as kerosene, but which he claims was a mixture of kerosene and gasoline. Upon the demand of the defendant, the trial court submitted the case to the jury for a special verdict. The special verdict consists of eleven questions prepared by the court, and each question was answered by the jury. Upon the return of the special verdict, both parties moved for judgment. The defendant's motion was denied, and that of the plaintiff was granted, and judgment entered in his favor for the sum of $ 4,750 and costs. Defendant moved for a new trial. This motion was denied. Defendant appeals.

Upon the motion for new trial, the defendant attacked the sufficiency of the evidence to justify the verdict, and also specified a large number of alleged errors in the admission and exclusion of evidence and in the instructions, and all of them are urged as grounds for reversal upon this appeal. It will be necessary to a proper understanding of the questions involved to set out the complaint and answer, and also the special verdict upon which the judgment rests.

The complaint alleges:

"(1) That the defendant is * * * engaged in selling * * * oils commonly called 'kerosene' and 'gasoline' for domestic use and consumption. * * *

"(2) That between the 20th day of November, 1902, and the 2d day of December, 1902, the defendant * * * did, by his employes * * * falsely, maliciously and with intent to endanger the life and property of plaintiff, sell to plaintiff as and for kerosene and representing the same to be kerosene, and upon plaintiff's request for kerosene, one gallon of a mixture of kerosene and gasoline, to be used for domestic use and consumption by plaintiff, as defendant well knew; that such mixture was explosive and dangerous.

"(3) That * * * the defendant and his employes, wilfully and with gross negligence, and with intent to endanger the life and property of plaintiff herein, neglected to inform the plaintiff that the mixture sold and represented as aforesaid was of a highly dangerous...