Goode v. Pierce Oil Corporation

Hart, J., (after stating the facts). Plaintiff’s cause of action is based upon the negligence of the defendants in selling to her what she had a right to assume was standard kerosene, when the oil purchased was' a mixture of kerosene and gasoline. The evidence was sufficient to allow the question of negligence of the defendants to be submitted to the jury. It tended to show that the oil, which was purchased by the plaintiff for kerosene, was a mixture of kerosene and gasoline, which flashed at 60 degrees Fahrenheit. According to the United States specifications, kerosene should not flash at a point lower than 140 degrees F. It is a matter of common knowledge that refined kerosene is used to furnish light and as fuel for oil stoves. It is also commonly used in kindling fires. Hence, in the absence of contributory negligence by the plaintiff, the evidence for the plaintiff was sufficient to allow a recovery by her. 11 R. C. L. 671 and 672, and cases cited, and 25 C. J. 202, and cases cited. We are of the opinion, however, that, under the plaintiff’s own testimony, we are compelled to say, as a máttér of law, she was guilty of contributory negligence. It is true that she purchased the oil in question for standard kerosene, but she poured the oil in the stove, knowing that the're was a small flame in the fire burning there. She held the can only about one and a half inches from the top of the stove, and knew that there was between a gallon and a gallon and a half of oil in it. While the evidence for the plaintiff tends to show that standard kerosene is not exploded by being poured onto a flame, still the undisputed evidence shows that it would explode if poured upon live coais. The plaintiff testified that there was only a small flame to 'the wood in the stove, and she might have expected that, in pouring the oil on it, she would extinguish -the -flame ánd thereby cause the kerosene to explode. It will be remembered that she only held the can about one and a half inches from the top of the stove. The decided cases and the authorities above cited hold that it is not negligence, as a matter of law, to use kerosene in kindling a new fire. The reason is that, in such a case, there is no possibility of causing an explosion by pouring kerosene on the wood. The wood is not ignited until after the person has ceased to pour the kerosene on it. A flame is then applied to the wood, and by no sort' of means could this have caused an explosion of the oil in the can. ' The casé is quite different when the oil is being poured from the can onto live coals or éven a small .flame. As we have already seen, the'pouring of the kerosene onto the small flame might extinguish' it and thereby cause the coal-oil "which came in contact with the burning wood to explode. In such a cáse, the better reasoning is to hold that'the party using the'kerosene is guilty of sttch contributory negligence as to bar him from recovery. Morrison v. Lee (N. D.), 113 N. W. 1025; Du Bois v. Luthmer (Iowa), 126 N. W. 147; Riggs v. Standard Oil Co., 130 Fed. 199; and McLawson v. Paragon Refining Co., 198 Mich. 222, 164 N. W. 668. Other authorities bearing on the question will be found in the volumes of Ruling Case Law arid Corpus Juris referred to above. It follows that the trial court was right in directing a verdict for the defendants, and the judgment will therefore be affirmed: