McLawson v. Paragon Repining Co.

Brooke, J. (after stating the facts). There are four assignments of error which may be considered together. They all relate to the action of the court in directing a verdict for the defendant solely upon the ground that plaintiff’s decedent was guilty of such contributory negligence as to preclude recovery as a matter of law. Upon this point counsel for plaintiff assert that a person is not to be held guilty of contributory negligence as a matter of law unless all reasonable minds would reach the same conclusion under the undisputed facts. Beach v. City of St. Joseph, 192 Mich. 296 (158 N. W. 1045). They assert that, while it has been held (Riggs v. Standard Oil Co., 130 Fed. 199; Dubois v. Luthmers, 147 Iowa, 315 [126 N. W. 147] ; Morrison v. Lee, 13 N. D. 591 [102 N. W. 223]) that to pour kerosene upon a fire for the purpose of replenishing it is an act of negligence per se, the use of kerosene for the purpose of starting a new fire is not to be held negligence as a matter of law, citing Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337, Am. & Eng. Ann. Cas. 1912A, 625, and notes) ; Ellis v. Republic Oil Co., 133 Iowa, 11 (110 N. W. 20); Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107 (89 Pac. 212), affirmed in 212 U. S. 159 (29 Sup. Ct. 270) ; Ives v. Welden, 114 Iowa, 476 (87 N. W. 408, 54 L. R. A. 854, 89 Am. St. Rep. 379); Chapman v. Pfarr, 145 Iowa, 196 (123 N. W. 992); Price v. Insurance Co., 92 Minn. 238 (99 N. W. 887). They further assert that under the law in this State, where there is no eyewitness to the accident, which — 229 — results in death and the circumstances shown justify legitimate inferences, which bring the defendant’s liability within the realm of' probability, rather than leaving it one for mere conjecture, the case is one for the jury, citing, inter■ alia, Lincoln v. Railway Co., 179 Mich. 206 (146 N. W. 405, 51 L. R. A. [N. S.] 710); Teachout v. Railway Co., 179 Mich. 398 (146 N. W. 241). The claim is made by counsel for appellant that, there being no eyewitnesses to the accident, the plaintiff is entitled to the presumption that his decedent exercised due care. In reply to the propositions advanced, counsel for defendant assert that the presumption of due care is not applicable to this case, because this court has held (Mynning v. Railroad Co., 67 Mich. 677 [35 N. W. 811]), that such presumption vanishes where the - testimony of an eyewitness or witnesses may be produced, and in this connection it is pointed out that plaintiff’s decedent lived for four days after the accident, much of the time in full possession of his mental faculties, and his testimony as to what actually occurred at the time of the accident could easily have been secured and preserved. They urge that slight evidence is sufficient to overcome the presumption, and that such evidence may be furnished circumstantially even though no eyewitnesses are present at the moment of the occurrence of the accident. Reference is here made to the fact that the two gallon can containing the explosive fluid was found in a shattered condition immediately in front of the stove in which plaintiff’s decedent was attempting to kindle a fire and to the further fact that the burns upon the person of decedent were such as to indicate beyond peradventure that the oil can was in his hands at the time of the explosion. They contend that the undisputed evidence, considered most favorably for plaintiff, renders it at least as probable that — 230 — the accident did not result from the negligence imputed to the defendant as that it did result therefrom. Powers v. Railroad Co., 143 Mich. 379 (106 N. W. 1117). They set out the following facts as bearing upon the question of the negligence of decedent: “The fact that he poured the oil directly from the can itself is further evidence of his negligence. The fact that he did not use the open cup or receptacle which was in common use by his father and mother, when lighting a fire in their stove, is further evidence of his negligence. The fact that he did not assure himself that there were no live coals or ashes in the stove is further evidence of his negligence. The fact that the fire must have followed into the oil can and caused it to explode is further evidence of his negligence. The fact that the can was found directly in front of the stove and that his hands received the most severe burns from the explosion is further evidence of his negligence. The fact that no evidence was given or the res gestee of the accident, though within the reach of plaintiff, is further evidence that he was negligent” —and assert that from a consideration of those facts it cannot be said that decedent was free from contributory negligence, and that reasonable minds cannot draw different conclusions from the facts which stand undisputed upon the record. Reference is made to the case of Molin v. Lumber Co., 177 Mich. 524 (143 N. W. 624, 48 L. R. A. [N. S.] 878), where this court said: “The plaintiff has not averred a custom or practice in the locality or generally of starting fires in stoves with oil by reason of which defendant ought reasonably to have anticipated that his licensees would search for his oil and use it to start a fire. We know of no general custom or practice to make such use of kerosene oil.” While this court has never held that the use of kerosene for lighting fires is not negligence per se, it is — 231 — equally true that it never has held the contrary. The examination of the jurors who sat in this case and the testimony of several witnesses tends to show that this practice, whether extra-hazardous or not, is one which is extremely common, if not well-nigh universal in the vicinity where the accident occurred. We are inclined to the view that it should not be held that the simple act of using kerosene for the starting of a new fire should preclude the user thereof from recovering upon the ground that he was guilty of contributory negligence as a matter of law. A different question, however, is presented when the evidential facts are considered. If plaintiff’s decedent attempted to relight a dying fire or to kindle a new one without first assuring himself there was no fire in the stove, by pouring kerosene directly from the can, this act, in our opinion, would plainly be negligence per se. The silent witnesses, the exploded can, and the character and location of the bums upon the body of the decedent very strongly point to the conclusion that this is what actually was done, nevertheless we have reached the conclusion that it is not the province of the court to so determine, but the question is one of fact for the jury under proper instructions. On behalf of the defendant it is urged that if the verdict was properly directed upon any ground the decision should not be disturbed, and in this connection it is said that plaintiff’s decedent was a mere licensee in his father’s house, and as such is precluded from recovery under the decision in Molin v. Lumber Co., supra. With this contention we are unable to agree. Plaintiff’s decedent was a minor residing with his parents, a member of the household, and as such was entitled to use the kerosene exactly the same as were his parents. It is next contended that, inasmuch as it appears beyond dispute in the record that defendant’s agent, Brown, was a careful and competent — 232 — employee, and that he made a careful personal inspection of the contents of the cans before emptying them into the kerosene holder upon the premises of Taylor & Soper, if a mistake was made by Brown, such mistaken act, as shown by this record, was not within the scope of his employment, nor an act for which the defendant should be held responsible. We agree with defendant’s counsel that there was no conscious adulteration of the kerosene either by the defendant or its servant. It is clear that Brown who delivered the oil believed that the contents of the two cans last delivered was kerosene, and that he came to that conclusion after a personal inspection of such contents, but, these facts being conceded, it does not necessarily follow that defendant may escape liability. In the case of Wellington v. Kerosene Oil Co., 104 Mass. 64, it is said: “It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself in fault” (citing cases). We think it is equally true that one who delivers such an article or substance is liable even though he was ignorant of its noxious character, if in the exercise of ordinary prudence he or; his servant should have possessed such knowledge. We take judicial cognizance of the fact that gasoline, either alone or mixed with kerosene, constitutes a highly explosive agent, and that extreme care should be taken by the vendors thereof to prevent their mixture. The record does not disclose whether the last two cans delivered to Taylor & Soper were painted red or white, but it does disclose with sufficient certainty the fact that through the agency of the defendant or its agent some gasoline — 233 — found its way into the kerosene holder of Taylor & Soper and that a part of this mixture was purchased by plaintiff, and was used by plaintiff’s decedent at the time of his injury. Under the circumstances of this case, and considering the baleful consequences which are likely to result to the user of a mixture of kerosene and gasoline when such use is made under the belief that the substance used is kerosene, we are of opinion that the question whether defendant’s agent, in making such investigation as he made, exercised that high degree of care imposed upon him by the fact that he was handling a dangerous, and under certain circumstances a highly explosive, substance, is for the jury. It is urged by counsel for defendant that, even though it is assumed that the defendant was guilty of negligence through the mistake of its driver, Brown, yet it should not be held liáble therefor because that negligence was not the proximate cause of the death of plaintiff’s decedent. This contention is based upon the claim that between such negligence and the death of said decedent there intervened the negligence of said decedent. This contention may be answered by saying that if the jury determine under proper instructions that plaintiff’s decedent was guilty of contributory negligence, that determination ends the case. The judgment is reversed, with costs, and a new trial is ordered. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.