Bennison v. Stillpass Transit Co.

O’Neill, J. The first issue which this court must decide is whether there was any showing of negligence on the part of defendant which proximately caused the death of plaintiff’s decedent. [125] To maintain an action for damages for wrongful death upon the theory of negligence, plaintiff must show (1) the existence of a duty owing to plaintiff’s decedent, i. e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death. Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388, 391. Plaintiff claims that defendant failed to exercise due care in that it sent to Ford Motor Company a tank in a dangerous condition, i. e., one containing explosive vapors, predicating her claim on the theory of negligent performance of a contractual obligation. The trial court properly rejected evidence pertaining to the contract. The duty under the contract, as shown according to the proffered testimony, was to send a tank which was “clean” so that transmission oil could be stored in it. Plaintiff’s decedent could not claim protection under such contract. He was entitled only to the protection afforded generally by the exercise of due care on the part of defendant. Plaintiff has misconceived the difference between negligence and mere breach of contract. The case of Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31, cited by plaintiff as controlling, does not support her contention. In that case, it was evident that the purpose of the contract was to provide maintenance of the elevator so that it would be safe for use by anyone. The act of negligence was not merely the breach of contract, but the failure to perform the duty owed both to the other party to the contract and to anyone else properly using the elevator. Likewise, the case of Pennsylvania Rd. Co. v. Snyder (1896), 55 Ohio St. 342, is inapposite. In order for the plaintiff to recover it would be necessary to determine that the gasoline vapors in the tank constituted a “defective condition” discoverable by defendant and that the delivery of the tank constituted an assurance by defendant that it could be safely handled by Ford’s employees. In the first place, it can not be said that the gasoline vapors in the tank constituted a “defective condition.” It is a matter of judicial notice that gasoline is a common substance in use at [126] all times on onr streets and highways, that vehicles travel with full, half-full and, at times, nearly empty gasoline tanks, and that when confined in proper containers gasoline is not inherently dangerous. It is also a matter of judicial notice that gasoline, being a combustible substance, gives off explosive vapors. A finding that this constitutes a “defective condition” would make all drivers of gasoline-powered motor vehicles chargeable with negligence. Dahl v. Valley Dredging Co. (1914), 125 Minn. 90, 95, 145 N. W. 796. The case of Mudrich, a Minor, v. Standard Oil Co. (1950), 153 Ohio St. 31, is not applicable to the instant case, since that case involved a breach of the duty owed to the general public, including plaintiff, and not merely the breach of the duty owed to a particular individual under a contract. There, defendant’s employee, a gasoline tank truck driver, in making a delivery of gasoline at a gasoline service station, spilled gasoline on the premises and drove away without attempting to clean it up. It was lighted by one of two small children, one of whom was injured in attempting to extinguish the blaze. The major issue in that case was not the negligence of the employee of defendant, but the foreseeability of harm to the particular plaintiff. The court held on the facts of that case that there was a jury question as to foreseeability, indicating that if the case had involved older persons the harm might not have been foreseeable, and that the same acts by older persons might have been an intervening cause. The opinion did not indicate that the mere carrying of gasoline in the tank created a risk of harm or that it would constitute a “defective condition,” which is essentially plaintiff’s position here. Here, in order to substantiate a finding of negligence, there must be more than a showing that the tank which was sent to Ford contained gasoline fumes and gasoline. Even if the sending of such tank was negligence, such negligence must have proximately caused the death. There must be no efficient intervening cause, i. the intervention of “another conscious and responsible agency which could or should have eliminated the hazard” between the agency creating a hazard and the injury. Thrash, a Minor, v. U-Drive-It Co. (1953), 158 Ohio St. 465. In the instant case, Ford accepted the [127] tank, knowing that it contained vapors, and began cleaning it out. Ford had possession and control of the tank and had knowledge of the claimed defect. It attempted to correct such claimed defect and it was at this point that the explosion occurred. Ford might well have refused the tank until Stillpass had made it fit. But having accepted the tank, Ford’s attempt to remedy the claimed defect relieved Stillpass of any responsibility which it might have had. Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St., 323, 328. The judgment of the Court of Appeals is, therefore, affirmed. Judgment affirmed. Zimmerman, Matthias, Schneider and Brown, JJ., concur. Tart, C. J., and Herbert, J., dissent.