Smith v. Gilbert Yards

• Decision Date: 21 December 1944
• Docket Number: 8683.
• Citation: 16 N.W.2d 912,70 S.D. 246
• Parties: SMITH v. GILBERT YARDS et al.
• Court: South Dakota Supreme Court

16 N.W.2d 912

70 S.D. 246

SMITH v. GILBERT YARDS et al.

No. 8683.

Supreme Court of South Dakota

December 21, 1944

C. R. Jorgenson, of Watertown, for appellant.

Hanten & Henrikson and D. K. Loucks, all of Watertown, for respondents.

RUDOLPH Judge.

In the year 1943 the plaintiff was a tenant in an apartment house or building owned by the defendants. In February 1943 a fire occurred in the building and damaged and destroyed certain personal property belonging to the plaintiff. The plaintiff brought this action to recover the value of the property destroyed and damaged and based his right of recovery upon the alleged negligence of the defendants, which it is claimed caused the fire. The facts disclose that the apartment building was heated by an oil burner located in the basement. The oil burner was in the exclusive control and management of the defendants and was used not only to heat the apartment of the plaintiff but several other apartments in the building. In addition to the oil burner used for heating the apartments there was a separate oil burner used for heating the water furnished to the several tenants in the building. This hot water heater was located a short distance from the furnace and was supplied with oil from the same tanks that supplied the furnace. The supply tanks consisted of two separate tanks each with a capacity of 275 gallons and these tanks were located in the basement several feet from the furnace. When originally installed there was an iron vent pipe leading from the tanks through the outside wall. The purpose of this vent pipe was to permit air to escape from the tanks when they were being filled with oil. It became necessary, however, following the installation to make a change in the location of this vent pipe and this change was made by the janitor or caretaker of the building. The caretaker removed the iron pipe that had originally been installed and substituted therefor a 'piece of garden hose' which he extended through the outside wall so that the hose opening was on the outside of the building. The plaintiff introduced evidence tending to show that the outside location of this hose was such that it was subject to become and did become filled with snow and ice which clogged it and defeated the purpose for which it was installed. Plaintiff's evidence also showed that if the vent became clogged oil pumped into the tanks would be apt to be forced through the burner or escape at some other point. Defendants introduced evidence to the effect that the vent pipe was not clogged, that its method of installation did not cause the fire, and that even if clogged, oil could not be forced through the burner. The fire started at the time the oil was being placed in the tanks. The tanks were being filled with oil from a delivery truck tank which was equipped with a pump to force the oil into the tanks. The man who was making the delivery testified that he proceeded to pump the oil from one compartment of the truck into the storage tanks and then went into the basement and observed more oil was needed and proceeding to pump the contents of a second compartment into the tanks. After observing the tanks a third time he proceeded to pump oil from a third compartment in the truck and had pumped 40 or 50 gallons from...