Opinion
No. 39758.
January 16, 1956.
1. Explosives — inflammable painting materials — negligence of painter — jury question.
Where owner of house brought action against painter for damage to house from explosion and flash fire which occurred when fumes of inflammable painting materials used by painter in painting floor were ignited by pilot lights of floor furnace, whether painter, under evidence, was negligent was for jury.
2. Explosives — same — instructions — degree of care.
Instruction that gasoline is a dangerous agency and that painter was required to use the highest degree of care and precaution suggested by experience and the known danger of its use, and that if jury believed that painter did not exercise such degree of care and precaution, and explosion and damage resulted from such failure, they should find for owner, was a correct statement of applicable law.
3. Appeal — explosives — instructions — review.
Where defendant obtained instruction telling jury that defendant was required to use only ordinary care under the circumstances which was more favorable to him than degree of care required of defendant in plaintiff's instruction referred to in Headnote 2, and if there was any error, it was in instruction given at request of defendant, defendant was in no position to complain on appeal that the instructions were contradictory.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Lee County; RAYMOND T. JARVIS, Judge.
C.B. Hutchison, Tupelo, for appellant.
I. The Lower Court erred in failing to grant defendant's motion for a directed verdict.
II. Something more substantial than conjecture or possibility is necessary to form supporting foundation of verdict or judgment. Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Hercules Power Co. v. Calcote, 161 Miss. 860, 138 So. 583; Yazoo M.V. RR. Co. v. Green, 167 Miss. 137, 147 So. 333; New Orleans N.E. RR. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Equitable Life Assur. Society of U.S. v. Mitchell, 201 Miss. 696, 29 So.2d 88; Columbus G. RR. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Danciger Oil Rfg. Co. v. Free, 204 Miss. 870, 35 So.2d 542; 20 R.C.L. 14.
III. The Court erred in granting the following instructions which are in conflict and contradict each other: "v. The Court instructs the jury for the plaintiff that gasoline is a dangerous agency, and that the defendant in this case, Tom Crane, was required to use the highest decree of care and precaution suggested by experience and the known danger of its use, and if you believe from a preponderance of the evidence that such high degree of care and precaution was not used by the defendant, and that as a consequence thereof the plaintiff's house was damaged by fire proximately resulting from the defendant's acts, then it is your sworn duty to return a verdict for the plaintiff, the form of your verdict being: `We the jury find for the plaintiff and assess damages at dollars.' The Court instructs the jury for the defendant that the law requires the defendant to exercise ordinary care, that is, such care as an ordinarily prudent person engaged in like business would have exercised under like circumstances and that it is incumbent upon the plaintiff to show by a preponderance of the evidence the failure of the defendant to exercise such care and unless you are satisfied that there was such failure, your verdict should be for the defendant." Herndon v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; Hines v. Lockhart (Miss.), 105 So. 449; Graham v. Brummett, 182 Miss. 880, 181 So. 721; Gibson v. A.T. Wineman Sons, 141 Miss. 573, 105 So. 826; Brister v. Dunaway, 149 Miss. 5, 115 So. 36.
IV. The Court erred in granting plaintiff the following instruction: "The Court instructs the jury for the plaintiff that if the jury finds from the evidence that the defendant was negligent in covering the floor of plaintiff's home with a highly inflammable substance in such a manner that the fumes from the substance would probably come into contact with an open flame in the gas heaters throughout the plaintiff's house, and that there was an open pilot light flame where the fire started, then in determining damages it is not necessary to consider whether the defendant could have anticipated the exact result of his negligent act, but only that the defendant might reasonably have foreseen that some injury to plaintiff's property might probably and naturally result from the negligence, if any." New Orleans Great Northern RR. Co. v. Frazer, 158 Miss. 407, 130 So. 493; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
Wm. S. Lawson, Tupelo, for appellee.
I. Whether or not the appellant was negligent in the premises was clearly a question for a jury to determine.
II. If the two instructions granted were in conflict, and appellee does not believe they were, this would have been to the advantage of the appellant and could have worked only to the prejudice of the appellee.
III. The instruction to the jury which is the basis of appellant's complaint in his third assignment of error is a good instruction and was applicable and proper in the case at bar.
On May 15, 1953, appellee Adams owned a house, occupied by himself and wife as a residence, located in Tupelo, Mississippi. In the house were floor heaters with pilot lights. Appellant Crane was a house painter. Adams employed Crane to paint the floors in that house. While so painting the floors there was an explosion and a flash fire which damaged the interior of the house. Adams brought this suit to recover a judgment against Crane for that damage on the ground that the fire and damage were caused by the negligence of Crane. A jury found for Crane in the justice of peace court. Adams appealed to the circuit court, where he obtained a verdict and judgment against Crane for $85.00. Crane appeals here.
(Hn 1) Crane asked for, but was refused, a peremptory instruction. He says he was entitled to that instruction because the proof fails to show that he was guilty of any negligence. Floor heaters, operated by pilot lights, were used in this house. It is not definite just how many such heaters were in the house. However, it is shown there were heaters in the rooms where Crane was painting the floors. The proof shows that the materials used in painting the floors were highly combustible. There is also proof that the pilot lights were burning in the stoves. It is not denied that there was an explosion and a flash fire. The substance used in painting the floors was burning. Crane did not himself turn off the pilots nor request Mrs. Adams, who was at the house, to do so. He says he did not notice the pilots were burning. He admitted he knew that the painting materials were highly inflammable and emitted fumes when being applied to the floors. He was an experienced painter. His duties, under his employment, required that he paint near and under the heaters. No fact appears in this record to indicate the explosion and fire were caused by anything other than contact of the paint fumes with the lights in the pilots. If Crane failed to notice that the pilots were burning he was guilty of negligence. If he did know they were burning and yet painted near them he was negligent — at least, in either case, or in both cases, the jury had the right to find him negligent. We think the learned trial judge was correct in denying the request for a peremptory instruction.
Adams obtained an instruction telling the jury that gasoline is "a dangerous agency", and that Crane was required to use the "highest degree of care and precaution suggested by experience and the known danger of its use", and that if the jury believe he did not exercise such degree of care and precaution, and the explosion and damage resulted from such failure, they should find for the plaintiff.
(Hn 2) Crane obtained an instruction telling the jury that he was required to use only ordinary care under the circumstances. Crane says the two instructions are contradictory and the case should be reversed for that reason. The instruction granted Adams was correct. (Hn 3) If there was error it was in the instruction given Crane. We do not see how this action worked any injury to Crane. The instruction he obtained required of him less precaution and diligence to avoid a fire than the instruction obtained by Adams. He is in no position to complain about that.
Affirmed.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.