O'Quinn v. Southard, 200

• Decision Date: 03 February 1967
• Docket Number: No. 200,200
• Citation: 152 S.E.2d 538,269 N.C. 385
• Court: North Carolina Supreme Court
• Parties: J. A. O'QUINN, Plaintiff, v. Ray SOUTHARD and Acme Petroleum and Fuel, Inc., Defendants.

Page 538

152 S.E.2d 538

269 N.C. 385

J. A. O'QUINN, Plaintiff, v. Ray SOUTHARD and Acme Petroleum and Fuel, Inc., Defendants.

No. 200.

Supreme Court of North Carolina.

Feb. 3, 1967.

Hollowell & Stott, Horace M. DuBose, III, Gastonia, for plaintiff.

Mullen, Holland & Harrell, Gastonia, for defendants.

SHARP, Justice.

This appeal presents the question whether the trial judge erred in overruling defendants' motions for nonsuit, I.e., whether all the evidence, considered in the light most favorable to plaintiff, is sufficient to establish defendants' actionable negligence. Hubbard v. Quality Oil Co., 268 N.C. 489, 151 S.E.2d 71.

Plaintiff offered evidence as to what ignited the gasoline. Neither Southard, nor plaintiff, nor Messer (the only three persons on the premises) was smoking; no one struck a match; no tool was dropped on the concrete to create a spark. Both plaintiff and Messer insisted most positively that the wheel-balancing machine was not in operation at any time during the delivery of the gasoline. The only evidence with reference to the Motors in the two refrigerated drink boxes tended to show that they were on the inside of a dome. The static electricity which had been generated by the movement of the gasoline in transit had been discharged before Southard attempted to deliver any gasoline at all. Furthermore, one tank had been completely filled and the other two were partially filled when the fire started. If the tanker or its equipment used for unloading the gasoline was substandard, the evidence does not so disclose. The driver was at all times in attendance, and no gasoline had been spilled prior to the fire. There is no evidence that Southard himself did anything to cause the fire--except to fill plaintiff's tanks as usual.

Plaintiff argues, however, that it was negligence to deliver gasoline on a hot, humid day when fumes were collecting at the site. Notwithstanding, he offered no evidence that the temperature at the filling station or the heat from the tanker was high enough to ignite gasoline fumes or that spontaneous ignition was a hazard inherent in the delivery of gasoline on a hot day. If such were the case, it would seem that plaintiff, an experienced filling-station operator, would have known of the danger and have forbidden the delivery. So far as our research can determine, a flame, a spark, or heat of at least 700$--800$ F. is required to ignite fumes from gasoline such as was being put into plaintiff's tanks. See Robert H. Perry's Chemical Engineer's Handbook (4th Ed.) Table 9--19, p. 9--33, Basic Considerations on the Combustion of Hydrocarbon Fuels, and the third edition of this handbook at p. 1584. See also Moore v. Beard-Laney, Inc., 263 N.C. 601, 139 S.E.2d 879; Hopkins v. Comer, 240 N.C. 143, 149, 81 S.E.2d 368, 373. Patently, neither the heat from the tanker nor the temperature at the filling station reached any such height.

Defendants' explanation of the fire--that it was caused by a spark emitted by the motor of the wheel-balancing machine when plaintiff cut it off while the two regular-gasoline tanks were being filled--is the only specific solution which the evidence provides. Plaintiff rejects this explication and concedes that he must depend upon the doctrine of Res ipsa loquitur to overcome the motion for nonsuit. This doctrine and the rules governing its application have often been stated by this Court: When a thing which causes injury is shown to be under the exclusive management of the defendant and the accident is one which in the ordinary course of events does not happen if those in control of it use proper care, the accident itself is sufficient to carry the case to the jury on the issue of the defendant's negligence. Lea v. Carolina Power and Light Co., 246 N.C. 287, 98 S.E.2d 9; Harris v. Mangum, 183 N.C. 235, 111 S.E. 177; Ridge v. Norfolk Southern R. Co., 167 N.C. 510, 83 S.E. 762, L.R.A.1917E, 215; Stansbury, N.C. Evidence § 227 (2d Ed. 1963). For an itemization of the situations in which Res ipsa loquitur does not apply, see Springs v. Doll, 197 N.C. 240, 242, 148 S.E. 251, 252--253.

No inference of negligence arises from the mere fact of accident or injury, Lea v. Carolina Power and Light Co., supra, and, as pointed out in Etheridge v. Etheridge, 222 N.C. 616, 619, 24 S.E.2d 477, 480:

'It (res ipsa loquitur) does not apply where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons, or that the accident might have happened as a result of one or more causes, or where the facts will permit an inference that it was due to a cause other than defendant's negligence as reasonably as that it was due to the negligence of the defendant, or where the supervening cause is disclosed as a positive fact * * *.'

Accord, 38 Am.Jur., Negligence § 300 (1941); 65A C.J.S. Negligence §§ 220.12--220.13 (1966). The doctrine of Res ipsa loquitur, a fortiori, has no application if the fire was due to any voluntary action or contribution on the part of plaintiff, or 'if it appears from the evidence that the accident might reasonably have been caused by plaintiff's own negligence.' 65A C.J.S. Negligence § 220.13 (1966).

Applying these rules to the evidence in this case, it is clear that the doctrine of Res ipsa loquitur is inapplicable. Defendants did not own or control the premises where the fire originated and, taking plaintiff's evidence in the light most favorable to him--which means that we assume he did not run the wheel balancer--its cause remains a matter for divination. '* * * (T)he trier of the fact could only indulge in conjecture as to the cause of the fire. In such case the doctrine of Res ipsa loquitur should not be applied.' Starks Food Markets, Inc. v. El Dorado Refining Co., 156 Kan. 577, 583, 134 P.2d 1102, 1106. In holding that the doctrine of Res ipsa loquitur did not apply to a fire occurring at the...