Standard Oil Co. of Kentucky v. Evans

Citation122 So. 735,154 Miss. 475
Decision Date03 June 1929
Docket Number26960
CourtUnited States State Supreme Court of Mississippi
PartiesSTANDARD OIL CO. OF KENTUCKY v. EVANS

(Division B.)

1. EXPLOSIVES. Whether seller's negligence in overflowing tank of automobile with gasoline was proximate cause of fire depended on whether seller should reasonably have foreseen some injury might result.

Whether seller's negligence in overflowing tank of automobile with gasoline was proximate cause of fire and injuries to motorist depended on whether seller should reasonably have foreseen that some injury might result therefrom, not particular one that did follow.

2 EXPLOSIVES. Gasoline seller was charged with knowledge gasoline is highly inflammable and that persons around automobile strike matches when smoking and that automobile parts become so heated as to ignite inflammable substances.

Seller of gasoline overflowing tank of automobile was charged with knowledge that gasoline is highly inflammable and that persons in and around automobiles striking matches for purpose of lighting cigars, etc., might cause it to ignite and that, also, parts of automobile sometimes become so heated from use as to ignite inflammable substances in or about automobile and burn it in whole or in part.

3 EXPLOSIVES. Motorist did not assume risk of gasoline seller's negligence in overflowing tank of automobile.

Motorist did not assume risk of negligence of gasoline seller in overflowing tank of automobile, since seller should have reasonably foreseen that overflow of gasoline might become ignited in some manner, resulting in injury to motorist and damage to automobile.

4 NEGLIGENCE. Motorist's contributory negligence in driving car which seller of gasoline had overflowed would go only to mitigation of damages.

Motorist's contributory negligence in driving automobile of which seller of gasoline had overflowed tank when filling it would not defeat motorist's right to recover for seller's negligence, but would go only to mitigation of damages.

5 TRIAL. Instruction on seller's negligently causing automobile gasoline tank to overflow held not erroneous as assuming overflowing was proximate cause of fire and injury to motorist. Instruction that, if jury believed that gasoline company's employee negligently caused tank of plaintiff's automobile to overflow with gasoline and as proximate result thereof exposed gasoline became ignited, by reason of which plaintiff suffered damage and injury, jury should find for plaintiff, held not erroneous as assuming overflowing of tank with gasoline was proximate cause of injury.

6. DAMAGES. Seven hundred fifty dollars for causing fire to automobile and causing burns about motorist's ankles held not excessive.

Verdict for seven hundred fifty dollars for causing damages of about four hundred dollars to plaintiff's automobile from fire and causing injuries to plaintiff's ankles from burns held not excessive.

APPEAL from circuit court of Lee county.

HON. C. P. LONG, Judge.

Action by Charlie Evans against the Standard Oil Company of Kentucky. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

J. M. Thomas, of Tupelo, for appellant.

Where the injury sustained by the plaintiff was not caused proximately by the negligence of the defendant but on the contrary such injury was sustained by the plaintiff under a risk that was assumed by him after having a full knowledge of the facts, in such case the plaintiff cannot recover.

Douglass Stephens, Administrator, etc., v. Blackwood Lumber Co. et al., 131 S.E. 314, 43 A. L. R. 426; Gust v. Muskegon Cooperative Oil Co., 198 N.W. 175, 33 A. L. R. 772.

Geo. T. Mitchell, of Tupelo, for appellee.

In order for defendant to be liable in this case, it is not necessary that its acts be the sole proximate cause of the injury, but if it was a contributing cause to the injury, this is all the law required.

An instruction in which the jury was simply told that if they believed from a preponderance of the evidence that an employee of defendant company negligently caused the tank of plaintiff's automobile to overflow with gasoline and that as a proximate result thereof said exposed gasoline became ignited, and plaintiff thereby suffered damages they would find their verdict for plaintiff was not erroneous.

In order to attack the amount of damages awarded in the court below, a motion for a new trial must be filed in that court.

Cocora v. Vicksburg Light & Traction Co., 89 So. 257; Tendall v. Davis, 91 So. 701.

OPINION

ANDERSON, J.

The appellee brought this action in the circuit court of Lee county against appellant to recover damages for the burning of his Ford car and contents, as well as injuries to his person, caused by the alleged negligence of appellant in overflowing his car with gasoline during the process of filling the tank to the car, which overflow gasoline ignited, resulting in the injuries sued for. There was a trial, resulting in a verdict and judgment for appellee in the sum of seven hundred fifty dollars, from which judgment appellant prosecutes this appeal.

The evidence tended to make the following case for appellee: On a Saturday night in October, 1926, about 7:30 o'clock appellee entered a filling station owned and operated by appellant in the city of Tupelo, for...

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