Parton v. Phillips Petroleum Co.

• Decision Date: 16 June 1937
• Docket Number: No. 5665.,5665.
• Citation: 107 S.W.2d 167
• Parties: MAGGIE PARTON, APPELLANT, v. PHILLIPS PETROLEUM COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

107 S.W.2d 167

MAGGIE PARTON, APPELLANT, v. PHILLIPS PETROLEUM COMPANY, A CORPORATION, RESPONDENT.

No. 5665.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Rehearing denied July 8, 1937.

Appeal from Circuit Court of Iron County. — Hon. E.M. Dearing, Judge.

AFFIRMED.

S.D. Flanagan for appellant.

Cecil L. Hunt and Edgar & Banta for respondent.

FULBRIGHT, J.

This action was begun in the Circuit Court of Iron County, September 3, 1933, by Maggie Parton against Phillips Petroleum Company and Henry Janke to recover damages for injuries received by her, alleged to have been caused by the negligence of the defendants. It was claimed that the Phillips Petroleum Company negligently sold to Henry Janke, an operator of a filling station, a mixture of kerosene and gasoline for refined kerosene; and said Janke sold to plaintiff's husband a quantity of the liquid believing it to be kerosene; that the liquid had a flash point of less than 100 degrees Fahrenheit in violation of Section 13,389, Revised Statutes Missouri 1929; that plaintiff used some of the liquid in kindling a fire, believing it to be kerosene; that as she did so said liquid exploded; and that as a result of said explosion plaintiff sustained the injuries complained of. The defendant denied generally the allegations in the petition and alleged contributory negligence on the part of the plaintiff. The reply was a general denial. In the course of the trial plaintiff dismissed as to Henry Janke. From a directed verdict in favor of defendant, plaintiff appeals.

Plaintiff's assignment of error is as follows: "The court erred in giving and reading to the jury defendant's instruction in the nature of a demurrer to the evidence directing the jury that under the law and the evidence its verdict should be in favor of the defendant."

Plaintiff and defendant seem to agree that the sole question to be determined is whether or not plaintiff was guilty of such negligence as to bar a recovery by her. The trial court in sustaining the demurrer to the evidence acted upon the theory that the plaintiff was guilty of such contributory negligence. Following the well settled rule in passing on the demurrer, plaintiff's evidence and all favorable inferences that may be legally drawn therefrom must be view in the light most favorable to plaintiff; and defendant's evidence, unless favorable to plaintiff, must be rejected, and where reasonable minds differ as to whether or not a person is guilty of contributory negligence, the issue must be submitted to the jury for its determination. [Nickelson v. Cowan, 9 S.W. (2d) 534; Rose v. Missouri District Telegraph Co., 328 Mo. 1009, 43 S.W. (2d) 562.]

In determining this issue the test to be applied, or "the standard by which negligence is measured and ascertained is the conduct of an ordinarily prudent man situated in like circumstances. [Amer. Brew. Assn. v. Talbot, 141 Mo. 674-685, 42 S.W. 679; 64 Am. St. Rep. 538; Loehring v. Westlake Const. Co., 118 Mo. App. 163, 180; 94 S.W. 747.] And a party may be charged with negligence if his conduct falls short of that which would be ascribed to an ordinarily prudent man in a like situation. However, this may be, the doctrine is firmly established in this State to the effect that, before a court is authorized to declare negligence as a matter of law to the extent of precluding a right of recovery, the dangers attending the situation of the party must be such as to threaten imminent peril; that is, the situation assumed by him must be fraught with peril to his safety and portend calamity apart from and without the intervention of negligence on the part of the actor to threaten the injury. The dangers must be so obvious that an ordinarily prudent man would not assume the situation." [Mitchell v. Chicago & A. Ry. Co., 132 Mo. App. 143, 112 S.W. 291.]

In the case at bar, plaintiff, being the only witness as to the method of using the liquid she thought to be kerosene, her testimony stands uncontradicted. Referring to her testimony we find that in her front room she had a stove "something similar to a circulating heater" with two doors, "one near the top and a smaller one at the bottom." On the 9th day of November, 1932, she was building a fire in the heating stove and she made it with paper and chips from the yard, lighted the paper with a match, and then went into the kitchen where she stayed about five minutes. She then went back to the living room to look at the fire "and there was only a small blaze;" she went back to the kitchen and talked to her children a few minutes more and went back to see about the fire "and it was not burning very well." She was in the kitchen about five minutes and when she went back to the front room she opened the door of the stove and dashed the coal oil in it, and as she did so it exploded. "I built a fire that morning and I don't know how long I had been nursing it." After the coal oil was poured in the stove, there was an explosion, flames came out of the stove, causing plaintiff to be injured. She testified that at the time she poured the oil out of the can into the stove she did not see any fire, but her testimony shows that she did not look to see if there was fire in the stove, although at least fifteen minutes had elapsed since she started the fire, and five minutes before she used the oil "the fire was not burning very well."

While we do not find any cases from our own jurisdiction directly in point, from an examination of the authorities cited by plaintiff and defendant, as well as other cases contained in the books, it seems that the law is reasonably well settled that it is not contributory negligence per se to use kerosene in kindling a new fire. However, it is equally well settled that if in kindling a new fire the fuel is first ignited and the kerosene then applied by pouring it from the can, or if used in an attempt to replenish a dying fire by pouring the kerosene thereon from the can, such acts constitute negligence as a matter of law.

In the case of Goode v. Pierce Oil Corporation, 286 S.W. 1009 (Ark.), in the course of its opinion, the court said:

"It is a matter of common knowledge that refined kerosene is used to furnish light and as fuel for oil-stoves. It is also commonly used in kindling fires. Hence, in the absence of contributory negligence by the plaintiff, the evidence for the plaintiff was sufficient to allow a recovery by her. [11 R.C.L. 671 and 672, and cases cited; 25 C.J. 202, and cases cited.] ...

"The decided cases and authorities above cited hold that it is not negligence, as a matter of law, to use kerosene in kindling a new fire. The reason is that, in such a case, there is no possibility of causing an explosion by pouring kerosene on the wood. The wood is not ignited until after the person has ceased to pour the kerosene on it... .

"The case is quite different when the oil is being poured from the can onto live coals, or even a small flame. As w...