Ramsey v. Standard Oil Co., 186 N.C. 739 (1923)

Dec. 20, 1923 · Supreme Court of North Carolina
186 N.C. 739


(Filed 20 December, 1923.)

1. Negljgence — Explosives—Evidence—Nonsuit.

In tbis action to recover damages for tbe wrongful death of plaintiff’s ■ intestate caused by an explosion of a certain admixture of kerosene and gasoline, sold and purchased for good kerosene oil, that would not have produced the result under the circumstances, there was evidence of negligence of the defendant through its employees in the distribution of the admixture, etc., sufficient to take the ease to the jury, and defendant’s motion as of nonsuit was properly disallowed.

2. Same — 'Proximate Cause — Intervening Cause.

When a dangerous admixture of kerosene and gasoline has been sold by the defendant through a local merchant as good kerosene oil, and bought by the husband, who carried it to his wife, and caused the death . of the latter by its explosion, which would not have occurred except for the extra danger of the admixture, the proximate cause of the death was the negligence of the defendant in making the sale of the admixture for the more harmless fluid, and not that of an intervening agency, when both the retailer and the husband who bought it were without knowledge, actual or constructive, of its more dangerous character.

3. Experts — Evidence—Findings—Appeal and Error — Objections and Exceptions.

When upon the trial a witness is apparently an expert upon the testimony he has given, the appellant may not sustain an exception to the evidence he has given on the ground that the judge had not found him to be an expert, it being required that he should have requested the judge to rule thereon.

Appeal by defendant from McElroy, J., at September Term, 1923, of MADISON.

Civil action to recover damages for alleged negligence of defendant, causing death of plaintiff’s intestate.

Tbe evidence on part of plaintiff tended to show that in 1922 defendant company negligently sold to a local merchant in said county, as good kerosene oil, an admixture of kerosene and gasoline, producing a highly explosive article; that this merchant, who only dealt in kerosene, acting under the belief that he was selling that kind of oil, and in entire ignorance of any admixture, in the usual course of trade, sold a small quantity to plaintiff, and shortly thereafter, on 21 December, 1922, when plaintiff’s wife,, using proper and ordinary precaution, was endeavoring to light a fire with said oil, the same, owing to its changed condition, exploded, setting fire to intestate’s clothing and inflicting severe burns, from which intestate then died.

On part of defendant there was denial of the alleged negligence, a plea of contributory negligence, etc., and on issues submitted there was *740verdict for plaintiff and assessing damages for tbe wrong'and injury. Judgment on tbe verdict for plaintiff, and defendant excepted and appealed, assigning errors.

Guy V. Roberts and Marie W. Brown for plaintiff.

George M. Pritchard and Martin, Rollins <& Wright for defendant.

Hoke, J.

Ve bave carefully considered tbe record, and find no valid reason for disturbing tbe results of tbe trial. On tbe argument before us it was chiefly contended tbat appellant’s motion for nonsuit should bave been allowed, but in our opinion tbe position cannot be maintained. 'While tbe testimony tends to show tbat both kerosene and gasoline were conveyed to tbe large storage tanks in tbe county with circumspect care, there are facts in evidence as to defendant’s methods in tbe local distribution of these articles which clearly permit tbe inference of negligence as tbe proximate cause of intestate’s death; and, further, tbat these methods seem to bave been in violation of tbe State statutes and tbe regulations of tbe Department of Agriculture designed to prevent just such occurrences. And tbe jury having accepted this version of tbe matter, and having found tbat tbe wife of plaintiff was in tbe exercise of proper care at tbe time, liability for tbe injury has been thereby established, and appellant’s motion for nonsuit was properly disallowed.

And we find nothing which tends to relieve defendant by reason of tbe fact tbat tbe immediate sale was through tbe intervening act of tbe local merchant, Len Henderson, or tbat tbe purchase was made by tbe plaintiff himself. Both seem to bave acted in entire ignorance of tbe conditions presented, and on tbe facts presented it is tbe permissible and tbe more probable inference tbat primary breach of duty on tbe part of defendant in carelessly permitting tbe admixture which resulted in tbe explosion continued to be tbe sole proximate cause of tbe injury. Balcum v. Johnson, 177 N. C., 213-216; Paul v. R. R., 170 N. C., 230-233; Ward v. R. R., 161 N. C., 179.

In Balcum’s case, supra, it is held, among other things: “In order for tbe act of an intelligent intervening agent to break tbe sequence of events and protect tbe author of a primary negligence from liability, it must be an independent, superseding cause, and one tbat tbe author of tbe primary negligence bad no reasonable ground to anticipate, and must in itself be negligent or at least culpable.”

Tbe exceptions to tbe rulings of the court on questions of evidence are without merit. They are chiefly to tbe testimony of J. B. Rhodes, a witness for plaintiff, and on tbe ground tbat be was allowed to testify as an expert without any finding of tbe court to tbat effect. Tbe facts, however, show tbat tbe witness was competent as an expert and was testifying to'matters particularly within bis experience and training as *741such.; and if defendant desired to challenge the qualifications of the witness in this respect, he should have requested a direct finding of the court on the subject, the authorities being thát the exception cannot be maintained on a general objection to the evidence. Vann v. R. R., 182 N. C., 567-569.

The ease is very similar to- that of Waters Pierce Oil Co., 18 Okl., 107, in which a recovery was had for the injury, and on writ of error to the Supreme Court of the United States, the judgment was sustained. S. c., 212 U. S., 159.

There is no error, and the judgment for plaintiff is affirmed.

No error.