Smith v. Kauffman

• Decision Date: 09 September 1977
• Docket Number: No. 3-1075A225,3-1075A225
• Citation: 366 N.E.2d 1195,174 Ind.App. 222
• Parties: Helen SMITH, Special Administratrix of the Estate of Arthur W. Smith, Deceased, Plaintiff-Appellant, v. Floyd KAUFFMAN and Standard Oil Company, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1195

366 N.E.2d 1195

174 Ind.App. 222

Helen SMITH, Special Administratrix of the Estate of Arthur W. Smith, Deceased, Plaintiff-Appellant, v. Floyd KAUFFMAN and Standard Oil Company, Defendants-Appellees.

No. 3-1075A225.

Court of Appeals of Indiana, Third District.

Sept. 9, 1977.

Edward N. Kalamaros, Edward N. Kalamaros & Associates, South Bend, for plaintiff-appellant.

Timothy W. Woods, Jones, Obenchain, Johnson Ford & Pankow, South Bend, for defendants-appellees.

HOFFMAN, Judge.

Helen Smith, Special Administratrix of the Estate of Arthur W. Smith, brought an action against Floyd Kauffman and Standard Oil Company for the wrongful death of her husband. The allegations of the complaint were generally that the defendants had a duty of care with regard to the mechanical means and applied method of fueling a crane, which they failed to observe, causing the accidental fire which killed the decedent. After a trial by jury, a verdict was rendered for the defendants upon which judgment was entered. Smith thereafter perfected this appeal contending that the verdict was contrary to law in that there was no evidence to support it and that the trial court erred in its overruling of a motion for judgment on the evidence on the issue of contributory negligence and assumption of the risk and, further, in its giving of certain instructions and in its ruling on the admissibility of several color photographs and of evidence concerning the pain and suffering of the deceased.

Insofar as appellant attacks the weight or sufficiency of the evidence in her appeal from a negative judgment, no issue is properly presented for review. Graves v. City of Muncie (1970), 255 Ind. 360, 264 N.E.2d 607; Plumley v. Stanelle (1974), Ind.App., 311 N.E.2d 626. However appellant contends that the trial court erred in denying her motion for a judgment on the evidence notwithstanding the verdict pursuant to Ind.Rules of Procedure, Trial Rule 50, on the issue of liability. It is argued therefore that there was no evidence that Arthur Smith was contributorily negligent or that he incurred the risk of his own injuries but rather that the evidence was uncontradicted that the proximate cause of his death was the negligence of the appellees.

In considering such a contention this court will neither weigh the evidence nor judge the credibility of witnesses but will look only to the evidence most favorable to the appellee together with all reasonable inferences to be drawn therefrom. Muehlman, et ux. v. Keilman, et ux. (1971), 257 Ind. 100, 272 N.E.2d 591.

In this context the record reveals the following facts most favorable to the appellees. Arthur Smith was employed as a heavy equipment mechanic by the Rieth-Riley Construction Company in Goshen, Indiana. On the date of the accident, June 15, 1967, Floyd Kauffman, an employee of Standard Oil, drove his fuel tanker into the Rieth-Riley yard at their main shop in order to deliver motor oil from a barrel into a 55-gallon "lubester." Thereupon Arthur Smith asked Kauffman if he had any gasoline to fill a crane he had been working on. Kauffman answered that he did and that he would supply it after he had finished "hooking up" the air hose for the transfer of the oil at a nearby site. Thereafter, Kauffman heard Smith start the crane apparently to make it more accessible for fueling.

Having completed the oil transfer, Kauffman entered his tanker and drove it around to within fifteen feet of the crane. He engaged the power takeoff with the clutch, then, getting out and going behind the truck, he set his meter and started the pump. Kauffman pulled out sufficient hose to get to the filler cap which was in the cab of the crane near the exposed engine. As he took the nozzle around to the cab the deceased "stuck his head out the window" and said "Floyd, hand me the hose and I'll fill it." Kauffman handed the hose up to Smith who got it and "pulled it up in through the window." Thereafter Kauffman returned to the rear of the tanker to view the meter where he discerned first a gentle and then a rapid flow of fuel. In anticipation of the tank's becoming full Kauffman put his thumb on the meter button to stop the flow. Simultaneously he noticed gasoline spray up above the window of the crane. He pushed the shutoff button to stop the fuel but somehow it ignited and exploded throughout the cab.

Kauffman ran to the side of the crane and saw Arthur Smith jump out of the crane with his shirt still burning. Leonard K. Wogoman, the shop foreman, hurried from his office and threw a light jacket over the victim to smother the flames. The victim was then taken by ambulance to a hospital and later transferred to the University of Michigan Burn Center where he died on September 21, 1967.

Appellant ascribes as negligent conduct on the part of Standard Oil Company the use of a Buckeye 882 nozzle and valve assembly at the delivery end of the hose used with the fuel tank truck. She further ascribes as negligent conduct on the part of Floyd Kauffman his failure to properly fill the crane's fuel tank by checking for sources of ignition and by securing against static electricity.

The record reveals ample evidence from which the trier of fact could have found contrary to these assertions.

The nozzle and valve assembly had a pistol grip type of lever which allowed for the gradual dispensing of fuel through a positive manual action. Kauffman had used the same nozzle without incident to fill Rieth-Riley's equipment before. He had even filled the crane in question several times previously. Moreover, Dr. Paul F. Youngdahl's expert testimony that the lack of an automatic shutoff was a hazardous characteristic of the valve is tempered by his further assessment that the rate of flow would depend on how far the operator of the nozzle moved the lever to raise the valve stem and that the gasoline nozzle itself was not actually defective.

There was also evidence from which the trier of fact could conclude that Kauffman's delivery of fuel was entirely reasonable and was in accordance with the applicable portions of the Standard Oil In-Field Development Guide. He observed upon pulling the tanker within fifteen feet of the crane no dangerous conditions which would preclude filling the tank. Kauffman handed the nozzle to the decedent at his request and began watching the meter to avoid an overflow. As soon as he observed gasoline he stopped the pump by pushing the lever. Furthermore there was expert testimony to the effect that there had been proper bonding and grounding during the transfer of fuel since the crane had metal tracks and the nozzle from the tanker after being inserted in the metal filler pipe would have equalized any potential charge between the vehicles.

Under such circumstances, it cannot be said that the verdict was contrary to the weight of the evidence and that the evidence was all in the direction opposite to the decision rendered. Evans v. Breeden (1975), Ind.App., 330 N.E.2d 116. Instead, the fueling operation appeared normal from Kauffman's testimony, and as appellant concedes, there was no direct evidence that the nozzle apparatus itself caused the overflow. Moreover, where there is a conflict in the evidence or different witnesses could be afforded a different credibility by reasonable persons, it is not within this court's province to second guess those authorized as finders of fact with a different conclusion.

Appellant frames her Trial Rule 50, supra, assertion concerning a failure of proof on contributory negligence and assumption of the risk as if this court on appeal can weigh the sufficiency of appellees' evidence to carry the burden of proving the elements of their defenses at trial. However when such a motion is denied after the jury has rendered a verdict this court, like the trial court, must view only the evidence and reasonable inferences to be drawn therefrom favorable to the verdict in accordance with the standard of raising such an alleged error pursuant to Ind.Rules of Procedure, Trial Rule 59(A)(4). Huff v. Travelers Indem. Co. (1977), Ind., 363 N.E.2d 985. If there is relevant evidence, as hereinbefore noted, which supports the conclusion of the jury, then the motion may not properly be granted because that evidence which supports the general verdict is deemed sufficient and thereby the final determination as to any defense whether of contributory negligence or assumption of the risk is left to the fact finder. Huff v. Travelers Indem. Co., supra.

Arthur Smith had a familiarity with the Koehring crane. He had been assigned the task of making it operative and had recently started the crane in conjunction with that effort. As a result thereof it was reasonable to infer that the engine was hot. Wogoman estimated that the manifold was approximately 8 to 10 from the gasoline fill-pipe. Under such circumstances Arthur Smith as a mechanic acquainted with working on gasoline engines would have known the risks of filling a gasoline tank near either exposed ignition wires or hot exhaust manifolds.

Thus, where conflicting inferences could properly have been drawn concerning both defendants' alleged negligence and decedent's alleged contributory negligence their resolution was within the sole province of the jury. Furthermore since there was sufficient evidence upon which a defendant's verdict could be derived and since the jury so found, the issue of damages cannot properly be considered on appeal. Yuhasz v. Mohr (1974), Ind.App., 307 N.E.2d 516; See, Chestnut v. Southern Indiana R. Co. (1901), 157 Ind. 509, 62 N.E. 32.

Smith predicates her second main contention of error on the giving of appellees' tendered Instruction Nos. 3 and 5 and the refusal to give certain of her tendered instructions.

Appellees' tendered Instruction No. 3 stated:

"In determining whether Floyd Kauffman and the Standard Oil Company were negligent in the manner of delivering gas to the crane in question, you may...