Nolan v. Haskett

• Decision Date: 07 November 1932
• Docket Number: No. 4-2701.,4-2701.
• Citation: 53 S.W.2d 996
• Parties: NOLAN et al. v. HASKETT et al.
• Court: Arkansas Supreme Court

Page 996

53 S.W.2d 996

NOLAN et al. v. HASKETT et al.

No. 4-2701.

Supreme Court of Arkansas.

November 7, 1932.

Appeal from Circuit Court, Crittenden County; Neil Killough, Judge.

Action by C. C. Haskett and another against T. H. Nolan and another. From a judgment for plaintiffs, defendants appeal.

Affirmed.

This appeal is prosecuted from a judgment for damages recovered against appellants for the alleged negligent destruction of appellees' premises at Jericho by fire.

A truck of appellants hauling gasoline was driven under the shed of appellees' filling station to deliver a certain quantity of gasoline sold to C. C. Haskett. The hose attached to the gasoline truck was about 10 or 12 feet long and used to discharge the gasoline or transfer it to the underground tank of appellees through an intake pipe about 2 inches in diameter and extending from the underground tank to the surface.

Riley, an employee of Nolan Bros., was operating the truck and had with him a negro helper, one Fuller, and riding with them on the truck was T. J. Hayden, not an employee of appellants. When the truck reached the premises of appellees, Riley connected the hose, put the nozzle in the intake pipe, and turned on the gasoline. Hayden, the guest, went into the restaurant and sat down. Riley "propped down" the discharge lever, which would have closed had he not done so and shut off the flow of gasoline, and went in to get the ticket signed by Haskett and to examine the coal oil tank. As Haskett and Riley started out of the restaurant, the gasoline in the opening of the intake pipe became ignited. Haskett, appellee, claimed that Hayden lit a cigarette and threw the lighted match out of the door and caused the fire. Haskett ran and reaching the hose, shouted to Riley to get on the truck and move it out, which he thought Riley was doing, and after time for him to have reached the lever and cut the gasoline off and to move the truck Haskett jerked the hose out of the intake pipe, and bystanders pushed the truck on out of the shed, but by then the fire was beyond control and burned up the property.

Riley, the operator, did not get on the truck, nor did he shut off the flow of gasoline. The fire had not spread to the building before the hose was jerked out of the intake pipe, and witnesses thought there was plenty of time for the operator of the truck to have cut off the flow of gasoline before the hose was disconnected and for the driver to move the truck. The driver appeared to be greatly frightened and made no move to start the truck nor shut off the flow of gasoline. Claimed he was afraid to do so because the hose had been jerked out of the intake pipe by Haskett and the volume of the flames increased so that he was afraid to move the truck, which was moved about 15 minutes later by bystanders.

Hayden, who was riding with Riley on the truck and who threw the match that started the fire, was not in the employ of appellants.

The court instructed a verdict for the Gulf Refining Company, there being no testimony showing any negligence on its part in connection with the fire.

The court instructed the jury, certain instructions being objected to, and from the judgment on the verdict against them this appeal is prosecuted by appellants.

E. B. Klewer and Hughes & Davis, all of Memphis, Tenn., for appellants.

Sam S. Margolin, of Memphis, Tenn., for appellees.

KIRBY, J. (after stating the facts).

Appellants insist that the court erred in not instructing a verdict in its favor and in refusing to give its requested instruction No. 3. The undisputed testimony shows that the driver of the truck in delivering the gasoline to appellees' filling station connected the discharge hose on the truck with the intake pipe of the underground tank, "propped the lever down" so the flow of gasoline would continue, and went away, leaving it unattended while discharging the gasoline, knowing at the time that it was a dangerous thing to do, but having no thought of any danger at the time. He knew that the lever was so arranged that it would shut the gasoline off from the discharge hose if it was not...