Reed v. Nelson

• Citation: 133 La. 968,63 So. 484
• Decision Date: 03 November 1913
• Docket Number: 19,724
• Court: Supreme Court of Louisiana
• Parties: REED v. NELSON

63 So. 484

133 La. 968

REED v. NELSON

No. 19,724

Supreme Court of Louisiana

November 3, 1913

Rehearing Denied December 1, 1913

SYLLABUS

(Syllabus by the Court.)

The evidence of the plaintiff fails to satisfy the court that her injuries were due to any fault of the defendant in selling her oil that was dangerous, and the mere facts that defendant threw away a large number of gallons of oil without showing that his act had some reference to the alleged explosion and injury of plaintiff is not sufficient evidence to show that he was guilty of a fault that caused plaintiff injury.

Dinkelspiel Hart & Davey, of New Orleans, for appellant.

Caffery, Quintero, Gidiere & Brumby, of New Orleans, for appellee.

OPINION

BREAUX, C. J.

Plaintiff, an old lady over 60 years of age, brought this suit against the defendant, proprietor of the Hammound Grocery Store, for the sum of $ 2,500 for an injury caused by the explosion of a can of oil. She alleged that the can contained a mixture of insurance oil and gas, and that it was inflammable and dangerous; that at the moment of the explosion, she being near the burning can, her clothes caught fire; that she was severely burned and suffered greatly by the shock, and was in consequence of her wounds confined to her bed quite a number of weeks.

Respondent resists this demand; denies that his store ever sold a mixture of oil which was explosive and dangerous; avers that if the oil he sold contained any gasoline at all it was in very small proportion of the insurance oil. He alleged in defense that there was no such explosion as alleged by plaintiff; that it was an absolute impossibility. His contention is that the cause of the accident was due entirely to the negligence of plaintiff.

The case in substance, as represented by plaintiff, is that she sent her young grandchild, aged eight years, to buy a small quantity of insurance oil from the defendant, and that on the child's return from defendant's place of business she handed her the can, which she (the plaintiff) placed upon the shelf in the kitchen; that at or near 9 o'clock on the day following, her daughter, the aunt of the child by whom the oil was bought, filled the lamps with oil bought from the defendant and placed the can containing the oil before mentioned on the floor near by the stove.

Plaintiff's contention further is that the oil ignited; that the daughter, greatly excited, hollering, picked up the can and ran to the door near the yard; that she (plaintiff) sought to protect her daughter at the time; the can fell from her hands as she grabbed it from her daughter, and her clothing caught fire. She says that that would not have happened, that there would have been no explosion, if it had not been that the can contained a mixture of gasoline and kerosene, which made the oil inflammable.

Plaintiff's further contention was in answer to defendant's position that the accident was due to plaintiff's negligence because she or her daughter used oil instead of kindling to light the fire. On this occasion defendant avers that the daughter used oil to kindle the fire; that plaintiff knew that her daughter was in the kitchen at the time; but that on important particulars, although present as mentioned, she recounted the occurrence differently from her daughter. Defendant adds that the witnesses were separated and did not hear one another's testimony....