Nelson v. Zamboni

• Decision Date: 07 August 1925
• Docket Number: No. 24743.,24743.
• Citation: 204 N.W. 943,164 Minn. 314
• Parties: NELSON v. ZAMBONI et al.
• Court: Minnesota Supreme Court

204 N.W. 943

164 Minn. 314

NELSON v. ZAMBONI et al.

No. 24743.

Supreme Court of Minnesota.

August 7, 1925.

Appeal from District Court, Steele County; Fred W. Senn, Judge.

Action by Otto J. Nelson, as administrator of the estate of Rex Dougherty, deceased, against Emil C. Zamboni and others, copartners doing business as the Zam Oil Company. After judgment dismissing the action, plaintiff appeals from an order denying his motion for a new trial. Reversed.

Nelson & Nelson, of Owatonna, for appellant.

Sawyer & Gausewitz, of Owatonna, and Brown, Somsen & Sawyer, of Winona, for respondents.

STONE, J.

An automobile filling station owned and operated by defendants exploded. Plaintiff's decedent was a passing autoist who, at the moment of the accident, was using the toilet in the building. He suffered injuries which proved fatal. This action is to recover damages for his death and resulted below in a dismissal at the conclusion of plaintiff's case. The appeal is from the order denying plaintiff's motion for a new trial.

The one question for decision is that of the application to the case, as made by the evidence for plaintiff, of the principle of res ipsa loquitur. The learned trial judge ruled that it did not apply.

There was no direct evidence as to the cause of the explosion. Two large tanks were in the basement. They were not buried as is usually the case. Air pressure was supplied to the tanks by an electrically operated pump controlled by an automatic switch. All of this mechanism was in the basement, and one theory of plaintiff is that gasoline vapor escaping from the feed pipes of the tanks was ignited by a spark from the pump switch. Further detail of the facts may be omitted, but we are not overlooking the significance, one way or the other, of a cover said to have been over the switch; it being argued on the one side that it was sufficiently tight to prevent access to the switch, and its spark, of escaping gasoline vapor, and on the other, that the cover was loose enough to permit the ignition in the manner indicated of gasoline vapor, if present. The construction of the switch and its cover was properly enough gone into, and the inferences to be drawn one way or the other are of fact. We cannot say what they are or to what extent they should control.

We do say, however, that the case as made by plaintiff was a proper one for the application of the rule of res ipsa loquitur. The accident was of a kind not likely to happen if those in...