Sandanger v. Carlisle Packing Co.

• Decision Date: 14 September 1920
• Docket Number: 15407.
• Citation: 192 P. 1005,112 Wash. 480
• Court: Washington Supreme Court
• Parties: SANDANGER v. CARLISLE PACKING CO.

192 P. 1005

112 Wash. 480

SANDANGER v. CARLISLE PACKING CO.

No. 15407.

Supreme Court of Washington

September 14, 1920

Department 1.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Ole Sandanger against the Carlisle Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hadley & Hadley and Kerr & McCord, all of Seattle for appellant.

Fred H Lysons and Arclander & Lysons, all of Seattle, for respondent.

PARKER J.

The plaintiff, Sandanger, commenced this action in the superior court for King county, seeking recovery from the defendant packing company, for personal injuries alleged to have been the result of the negligence of the defendant in furnishing as a part of the equipment of one of its motorboats, upon which he was employed, gasoline in a one-gallon kerosene oil can, under such circumstances as to induce him to innocently use it as kerosene, resulting in a flare or explosion causing him to be seriously burned. Trial in the superior court, sitting with a jury, resulted in a verdict in favor of the plaintiff, and a judgment rendered thereon in the sum of $4,175, from which the defendant has appealed to this court.

Respondent Sandanger, is a resident of this state. Appellant packing company is a corporation created and existing under the laws of this state, with its general offices in Seattle. It owns and operates a salmon cannery near Cordova, Alaska, in connection with which it owns and operates several motorboats. On and prior to March 7, 1917, respondent was employed by appellant to work in and about its cannery, and also upon its motorboats as he might be directed. On that day he was assigned to duty upon one of appellant's motorboats, as one of the crew consisting of himself and three others, one Stensland being in command. The boat was 28 feet long, with an inclosed cabin forward, in which there was a motor near the middle, and a bunk and bench along one side, and a bench along the other side, on which sat a small sheet iron wood-burning stove, used for cooking meals for the crew. Under the bench on which the stove sat, but further forward, and evidently in a safe place, there sat the one-gallon kerosene oil can here in controversy. This can, with kerosene in it, had been furnished as a part of the boat's equipment, for the purpose of filling the lamps of the boat. According to conceded custom, kerosene was taken from the can and used to start fires in the small cookstove; that is, by first pouring a small quantity of kerosene on the wood and then applying a lighted match to the fuel so prepared. We here note in passing that there is no suggestion in the argument of counsel that such use of the kerosene constituted carelessness on the part of one so using it. Respondent had worked upon this boat as a member of its crew on several former occasions, and was well acquainted with its arrangement and equipment, including the kerosene oil can, and also the custom of using kerosene from the can to start fires in the stove. About 7 o'clock in the morning of the day in question the boat left the cannery to go some 20 miles southwesterly to a place where suitable sand could be procured for some contemplated masonry work, with a view to bringing back a load of the sand in sacks. The boat arrived at its destination about an hour or so before noon. The boat was provisioned for the noon meal of the crew, in view of the fact that the trip would take all day. One of the crew started a fire in the cookstove for the purpose of preparing the noon meal, using instead of kerosene a bunch of waste, which had become saturated with oil from use in wiping the engine. The meal being prepared, and evidently the work of loading the sand being finished, the food was brought out on deck, where it was served and eaten. It seems that the boat at that time had started on its homeward journey, and the work of the day, other than washing the dishes, being finished, the crew were at ease, and privileged to rest and enjoy themselves. About an hour and a half or two hours after serving the meal, when the fire in the cookstove was allowed to go out, and after it actually had gone out, and the stove and ashes therein had become cold, according to positive testimony which the jury had a right to believe, respondent was directed by Stensland to start a fire in the stove and heat water to wash the dishes. He went into the cabin, placed some wood in the stove, took the kerosene oil can from its accustomed place, poured a small quantity of whatever was in the can on the wood, then holding the can in one hand, away from the stove, lighted a match, and dropped it upon the wood in the stove, when instantly there was a flareup of great violence amounting practically to an explosion, which was of such force as to cause some damage apart from the mere burning that immediately followed. Respondent was thrown across the cabin, but soon recovered himself and rushed upon deck with his clothes on fire. His associates being unable to put out the fire on his clothes, he jumped overboard, when a plank was thrown to him, and he was taken on board. The fire in the cabin was extinguished, and the boat proceeded to Cordova as fast as possible, arriving there late in the afternoon, when respondent was given medical treatment. Respondent's counsel prosecuted the case, and was awarded recovery upon the theory that appellant had negligently furnished gasoline in the kerosene oil can instead of kerosene, and that such act was negligence on the part of appellant, rendering it liable to respondent for the injuries received in the manner we have described.

It is first contended in appellant's behalf that the trial court erred in overruling its challenge to the sufficiency of the evidence to support recovery, on the ground of its negligence, presented by proper motions timely made. Practically the whole of the argument of counsel touching this contention, apart from the federal maritime question to be presently noticed, has to do with the question of whether the kerosene oil can contained gasoline or kerosene at the time respondent used whatever was in the can to start the fire in the stove. If it was kerosene, appellant would not be responsible for respondent's injuries; while if it was gasoline, it seems plain that because of the liability of gasoline to generate explosive gas when so used appellant would be responsible for respondent's injuries; or, rather, a jury could well find from the evidence that the furnishing of gasoline under such circumstances was negligent and the proximate cause of respondent being injured. There was testimony fully warranting the jury in believing that when the boat returned to the cannery from its previous days trip there was no kerosene or other fluid in the can, it being all used that day in filling the boat's lamps, and there being none left, even for the starting of a fire in the cookstove on that day; that whatever was in the can at the time respondent was injured was put into it from appellant's store of supplies on shore between the time the boat returned the day before and the starting of the boat on its trip that day, and that no one attempted to use whatever was in the can to start a fire in the cookstove that day, until respondent did so. The evidence does not disclose with certainty who filled the can or where it was filled, but there is some ground for inferring that it was filled by Stensland, the commander of the boat, from appellant's store of supplies on shore. It, in any event, seems to have been his duty to see that the can was filled. There is some evidence tending to show that appellant did not exercise due care in keeping its gasoline and kerosene receptacles in its store of supplies on shore properly designated, so that their respective contents would be readily distinguishable. This evidence is not very satisfactory, but is of some moment in view of what actually happened.

The testimony of chemists and men of experience with reference to the comparative burning and explosive qualities of kerosene and gasoline furnished the jury abundant ground for believing that the use of kerosene in a cold stove, in the manner respondent used whatever was in the can when he attempted to start the fire, would not cause any such an explosion as then occurred; while the use of gasoline in a cold stove in such manner would cause such an explosion. That is, by the pouring of a small quantity of kerosene on the wood, explosive fumes would not be generated sufficient to cause an explosion by the applying of a lighted match thereto; while such use of a small quantity of gasoline would generate fumes sufficient to cause such an explosion. There is no suggestion in the argument of counsel, indeed we think there is no ground therefor, that the contents of the can was other than kerosene or gasoline; so it becomes a question of the evidence showing with a fair degree of probability that it was gasoline instead of kerosene; that is, as to whether the evidence was such as to take the answer to that question out of the realm of speculation and conjecture.

Counsel for appellant rely upon our decisions which are reviewed by Judge Chadwick in Parmelee v. C M. & St. P. R. Co., 92 Wash. 185, 158 P. 977, holding, in substance, that the evidence must be such as to prove a fact necessary to recovery, by a degree of certainty that removes the inquiry from the realm of speculation and conjecture. We have no disposition to recede from the holdings in those decisions. We are of the opinion, however, that the evidence introduced upon the trial of this case was such as to render these decisions without controlling force upon our present inquiry. Were we trying the question of fact which the jury were called...