Pargas of Taylorsville, Inc. v. Craft
| Decision Date | 03 May 1971 |
| Docket Number | No. 46227,46227 |
| Citation | 249 So.2d 403 |
| Parties | PARGAS OF TAYLORSVILLE, INC., a Mississippi Corporation, v. Shelia Diane CRAFT, a Minor, by G. C. Craft, Father & Next Friend. |
| Court | Mississippi Supreme Court |
Wilbourn, Williams & Glover, Meridian, Eugene G. Tullos, Raleigh, for appellant.
Bowling, Coleman & Cothren, Jackson, Luther David Pittman, Crymes Pittman, Raleigh, for appellee.
This is an appeal from the Circuit Court of Smith County, Mississippi, wherein a judgment in the sum of $100,000 was entered against J. D. Lyles and Pargas of Taylorsville as co-defendants. From that judgment one of the defendants, Paragas of Taylorsville, appeals.
On August 8, 1969, between 8:00 and 9:00 p.m., the appellee and her sister were riding in the rear of a pickup truck which was being operated by their father, G. C. Craft, over State Highway No. 28. The co-defendant, J. D. Lyles, was also operating a vehicle, a 1966 Dodge, on the same highway and was traveling in the same direction as the Craft vehicle. Lyles admitted he was traveling forty to forty-five miles per hour in a speed zone of thirty-five miles per hour and that he had no brakes on his automobile.
As Mr. Craft, after signalling, was in the process of turning his pickup truck to the right from paved Highway No. 28 onto a gravel road, which is Old Highway No. 28, on which his mother's home is located, the rear of the truck was struck by the right front of Lyles' automobile. Lyles tried to turn left and avoid striking the Craft pickup He testified, 'I give it some gas,' but oncoming traffic kept him from turning and his car struck the pickup, evidently locking the bumpers. The speed of Lyles' car and the great force of the collision prevented Craft from controlling his truck, and propelled or shoved the Craft vehicle into the liquid petroleum gas storage facility owned by the appellant. The pickup truck was shoved into and demolished a small metal building which housed the pumping facilities of the liquid petroleum gas storage facility. So great was the impact that the truck sheared the three-quarter inch bolts which held the pump in place and broke a two inch pipe leading to the storage tanks which contained liquid propane gas.
The pictures clearly reveal that the pickup truck crashed through and went over the twelve gauge manproof wire fence joined to the north side of the metal pump house. A tremendous gas fire instantly erupted at the facility of the appellant. This bulk plant was and has been located on private property for twelve years. The location of the plant and its distance from Highway No. 28 was known, approved and accepted by the Liquid Petroleum Gas Safety Division of the Motor Vehicle Comptroller's Office as being a safe distance from the highway and having met the Division's safety requirements for such a facility.
It is undisputed that the pump and the fifty feet of connecting pipes contained two and eight gallons of liquid propane gas, respectively. It was further shown by testimony, though conflicting, that the valve on the pipe leading from the bottom of the 6,000 gallon tank, which was in the middle of three tanks in the facility, was open and that this tank contained approximately six hundered gallons of liquid propane when checked shortly before the collision.
Mr. and Mrs. Craft, after the pickup struck the pump, immediately 'stumbled away' from the truck, which was enveloped in flames. After extricating themselves, they had to 'wade back into' the fire and managed to remove their two daughters before their clothing caught fire. The appellee, a minor child, by her father and next friend, instituted suit against the two co-defendants for the first, second and third degree burns which she suffered. A demurrer was filed to appellee's declaration which was presented and overruled.
The cause proceeded to trial and at the conclusion of all the evidence, the trial court overruled the appellant's request for a directed verdict and submitted the case to the jury on the grounds that the appellant, Pargas, could be found to have been guilty of contributory negligence in failing to have a fence five feet away from and around the pump, and in failing to have all of the valves on the tanks closed. Under proper instructions these two issues were submitted to the jury which returned a verdict in favor of the appellee for $100,000. From a judgment for that amount, this appeal is taken.
Regulations 3.4 and 3.7 of Division III of the Liquefied Petroleum Gas Safety Rules and Regulations of the Motor Vehicle Comptroller, as empowered by Mississippi Code 1942 Annotated section 5104 (1956), provide, among other requirements, as follows:
'DIVISION III-BULK STORAGE PLANTS
'3.4 Container Valves and Accessories
'(b) Connections to containers, except safety relief connections, liquid level gauging devices and plugged openings, shall have shutoff valves located as close to the container as possible and never more than one foot from excess flow valve.
'(f) The manual shutoff valve located next to the excess flow valve on storage containers' outlets shall be closed except during filling and unloading operation.
'3.7 Fencing
It is undisputed in the record that the pump was enclosed in a metal house which Mr. J. B. Williams, Inspector of the Liquid Petroleum Gas Division, stated was attached to the fence which circumscribed the three tanks. From the diagrams offered in evidence it is apparent that the fence was attached to the southeast corner and approximately in the middle of the north side of the metal pump house. The metal pump house was padlocked from the outside and also contained a gate which permitted access to the liquid petroleum pump, pipes and tanks. The evidence also clearly establishes the fact that even if all the valves had been closed as required by the rules and regulations of the Liquid Petroleum Gas Safety Division of the Motor Vehicle Comptroller's Office, ten gallons of liquid propane gas would still be present in the approximately fifty feet of two inch piping and the pump and that it would have escaped instantaneously when the pump was sheared off and the two inch pipe was broken. It is undisputed that the pressure of two hundred and fifty pounds in the pump and in the fifty feet of piping was the same as that in the tanks and remaining pipes so long as the propane gas was in a liquid state.
The undisputed proof further shows that this liquid propane will expand two hundred and seventy times as it is changed into a vapor and burned and that this quantity of liquid propane in itself in these types of containers will burn for approximately thirty minutes, as testified to by Dr. William McCain, Jr., Head of the Petroleum Engineering Department of Mississippi State University.
The record further reflects that the appellee did not present any direct evidence to show that she would not have been injured as she was if all the valves had been closed at the time of the collision.
The appellant in his brief assigns five errors. It is necessary for us to consider only the first and the fifth errors urged by the appellant, which are:
1. The trial court should have directed a verdict for the appellant.
5. The verdict of the jury was contrary to the overwhelming weight of the evidence.
These errors will be treated jointly as was done by the appellant and appellee in their respective briefs. At the outset it can be conceded that the failure of the appellant to construct the 'man proof' fence 'no closer than 5 feet' to the pumping equipment together with the failure to close the shutoff valve of the six thousand gallon tank constitutes negligence on the part of the appellant in that it is a violation of the rules and regulations of the Liquid Petroleum Gas Safety Division of the Motor Vehicle Comptroller's Office promulgated under the authority of Mississippi Code 1942 Annotated section 5104 (1956). As is true in the case of danger, so negligence of itself is not sufficient to permit a recovery because of injuries sustained by another. The injury must have been caused by the negligence complained of.
In Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 497, 186 So. 625, 627 (1939), this Court stated:
It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.
In Tombigbee Electric Power Association v. Gandy, 216 Miss. 444, 452, 62 So.2d 567, 569 (1953), the defendant created a dangerous situation and this Court pointed out that danger alone is not negligence and 'even where negligence is shown that fact alone affords no basis for the recovery of damages unless it further appears from direct evidence or reasonable inference that such negligence proximately contributed to the damage.'
The following cases have application to the case at bar: Fate Robison, Jr. v. Joseph Forest McDowell, Jr., Miss., 247 So.2d 686, decided April 5, 1971; Hoke v. W. L. Holcomb & Associates, Inc., 186 So.2d 474 (Miss.1966); Permenter v. Milner Chevrolet Company, 229 Miss. 385, 91 So.2d 243 (1956); Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34 (1943).
In all four of the above noted cases the plaintiffs were injured and the defendants were guilty of some negligence, but this Court ruled nevertheless that the defendants were not liable because the defendants' negligence was...
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...charged with foreseeing all occurrences, even though such occurrences are within the range of possibility. Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403, 407-08 (Miss.1971). ¶ 49. The lower court's judgment of dismissal under Rule 12(b)(6) is reversed because Donald has stated a clai......
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