Sorensen v. Seldenbreck Construction Company

• Decision Date: 20 September 1915
• Docket Number: 18214
• Citation: 154 N.W. 222,98 Neb. 689
• Parties: CARL SORENSEN, ADMINISTRATOR, APPELLEE, v. SELDENBRECK CONSTRUCTION COMPANY, APPELLANT
• Court: Nebraska Supreme Court

154 N.W. 222

98 Neb. 689

CARL SORENSEN, ADMINISTRATOR, APPELLEE, v. SELDENBRECK CONSTRUCTION COMPANY, APPELLANT

No. 18214

Supreme Court of Nebraska

September 20, 1915

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Greene Breckenridge, Gurley & Woodrough, for appellant.

H. S Daniel and John A. Moore, contra.

SEDGWICK, J. HAMER, J., not sitting.

OPINION

SEDGWICK, J.

The Selden-Breck Construction Company was engaged in constructing a concrete building in the city of Omaha, and, the weather being very cold, it was necessary to take precautions against freezing, and for that purpose fires were built in two sheetiron firepots, called salamanders. These firepots were about 20 inches in diameter and 30 inches in height, and were placed four or five feet apart on a scaffold which was elevated above the concrete floor of the building. Samuel Larsen was in their employ, and assisted in building these fires. Soon afterwards, while he was standing between these two salamanders with the can of coal oil in his hand, there was an explosion, which covered him with the burning oil and caused his death. The plaintiff, as administrator of his estate, brings this action to recover damages, alleging that the death of the deceased was caused by the defendant's negligence. In the district court he recovered a verdict and judgment for $ 15,000 damages, and the defendant has appealed.

The following facts are admitted or well established by the evidence: Larsen was working under a foreman named Box. The material for building the fires was damp, and, as their custom had been, they used coal oil to saturate these materials before the fires were lighted. The defendant used both gasoline and kerosene in its business, and its custom was to keep two five-gallon cans of each in the building for use. The kerosene was ordinarily kept in two white cans, and the gasoline in two red cans. Shortly before this accident the defendant had ordered five gallons of kerosene and the man who delivered the kerosene, not being able readily to find the kerosene can, and one of the gasoline cans being empty, put the kerosene in a gasoline can. He informed the foreman Box that he had done so, and on this occasion the foreman, intending to take the kerosene, which he knew had been put in the gasoline can, took a can of oil and gave it to the deceased, supposing it was kerosene, and instructed him to saturate the material for the fire with it. This the deceased did, and after the fire was lighted the deceased was standing with this can of oil between the two salamanders, as before stated, when the explosion occurred.

There is evidence that it would be dangerous to hold an open can of gasoline so near these fires as this can was being held, since the fumes of the gasoline might escape, and, coming in contact with the flames, an explosion would be caused. The defendant was clearly guilty of negligence in keeping the gasoline and kerosene as it did, and if this negligence resulted in furnishing the deceased with gasoline which he, without fault on his part, supposed to be kerosene, and the explosion was caused by the vapor of the gasoline escaping from the can, which could not happen in the use of kerosene, the negligence of defendant was the proximate cause of the accident.

The defendant insists that it was kerosene which was given the deceased, and that he was pouring the oil upon the lighted fire, which caused the explosion; that he had been expressly warned against putting kerosene upon lighted fires, and that the deceased's own wilful negligence was the cause of the accident. We are satisfied that there is evidence in the record tending to support this contention of the defendant, and there are but two questions for us to consider: First, whether the issue so formed was properly submitted to the jury; and, second, if so, whether the damages allowed are excessive.

It will be seen that the plaintiff contends, and in order to recover must prove, that the oil given to the deceased by the foreman was gasoline, and that while the deceased was using it as he was directed by the foreman to do, and as it would be safe to do with kerosene, the vapor of gasoline escaped from the can and came in contact with the fire that had been lighted in the salamanders, which caused the explosion. The defendant denies this, and contends that it was kerosene, and not gasoline, which was given deceased, to use, and that the deceased was attempting to pour this oil upon the fire, which caused the explosion. Of course, the plaintiff has the burden of proof upon the issue so presented. The proof is not conclusive that the can handed to deceased by the foreman contained gasoline, nor that vapor escaping from the can was the cause of the explosion, rather than an attempt of the deceased to replenish the fire with oil. No witness saw the deceased at the instant of the explosion. We will not undertake to recite the evidence of the circumstances and conditions from which this controverted point must be determined. It is sufficient to say that the evidence was such as to require the court to submit the issue to the jury. The court properly submitted the contention of the plaintiff, that the can contained gasoline, and that the vapor escaping from the can caused the explosion, and then instructed the jury: "The defendant having alleged that the deceased's injuries and death were caused by his own negligence in pouring coal oil on a live fire, the burden of proof is upon the defendant to establish this allegation by a preponderance of the testimony. Now, this testimony need not come solely from the witnesses for the defendant; but if from a preponderance of all the testimony, the defendant has established this allegation, then your verdict should be for the defendant." Also: "There is a presumption, in the absence of evidence to the contrary, that the deceased exercised due care and caution for his own safety, and, in considering the issue of negligence of the deceased,...