Summary
In McLeod v. Linde Air Products Company, 318 Mo. 397, 1 S.W.2d 122, specific negligence was alleged, and the res ipsa rule was not involved.
Summary of this case from Gibbs v. General Motors CorporationOpinion
December 7, 1927.
1. EVIDENCE: Clogged Valve: Tank in Defendant's Possession: No Other Explanation. Defendant manufactured oxygen and sold it to plaintiff's father for use in welding. It was delivered in steel tanks, twelve inches in diameter and five feet high, the pressure being 1800 pounds to the square inch. On the top of the tank was a brass valve, with an outlet of three-sixteenths of an inch in diameter, and to the valve a brass coupler was attached, and when a tank was delivered a pipe line would be attached to the coupler, by which the oxygen in the tank would be transferred to the father's low-pressure tank. When the pipe-line had thus been connected with the brass coupler by the father's employee, and the valve slightly opened, which was the usual method, the oxygen did not flow through the pipe-line, and the employee concluded that defendant's tank was empty. He closed the valve, and disconnected the two tanks by removing the pipe-line, leaving the brass coupling attached to the valve. Then he again opened the valve, and held his hand over the opening, and after holding his hand in this position for a short time he concluded there was no oxygen in the tank, and left the valve open. In a few seconds the oxygen forced itself through the valve, driving particles of rust and metal into the employee's face, and causing the tank to topple over and the brass coupler to strike a steel table, thereby chipping a piece from the coupler and driving it into the skull of plaintiff, a fifteen-year-old boy, who was standing about eight feet from the tank. Plaintiff contends that the opening of the valve was clogged and stopped up by an accumulation of rust and other foreign matter, which prevented the escape of the oxygen when the valve was slightly opened, and defendant contends that there is no evidence that the valve was obstructed when the tank left its custody. The evidence is that within fifteen minutes after the delivery of the tank the connection was made between the tanks for the purpose of transferring the oxygen from the one to the other, and there is no evidence that the valve was handled by any one during the fifteen minutes, and none that the obstruction might have been in the pipe-line connection instead of in the valve. The pipe-line, the couplers and defendant's tank were exhibited to the jury, and defendant did not direct the jury's attention to any rust in the pipe-line or couplers. The evidence further was that if the valve had not been clogged, the oxygen would have instantly rushed from the tank when the valve was completely opened. Held, that it cannot be ruled that there was no evidence that the valve was obstructed when the tank left defendant's custody, and the question was one for the jury to determine, although the negligent obstruction in the valve is relied upon as the proximate cause of plaintiff's injury.
2. NEGLIGENCE: Explosion of Oxygen: Liability to Bystander. To the general rule that the manufacturer of an article is not liable to a third person with whom he has no contractual relations for a defect in the container by which the article is vended, is the exception that he is liable to the general public for vending an inherently dangerous article in a defective vessel.
3. ____: ____: ____: Defective Valve in Steel Tank. Where the defendant, a manufacturer and vendor of oxygen, inclosed the gas in a steel tank, the pressure being eighteen hundred pounds to the square inch, and delivered the tank to a welder, and a valve through which the oxygen escaped by a pipe-line to the welder's tank was stopped up and clogged with rust and other foreign substances, and the welder's employee, having no knowledge of its choked condition and being himself without fault and supposing from his former experiences that the tank was empty, opened the valve and almost immediately the tank exploded, the explosion being caused by the clogged condition of the valve, the defendant is liable in damages to a minor son of the welder who stood close by the tank and was injured by the explosion. The tank was not itself inherently dangerous, but when applied to its intended use in its defective condition it became dangerous, and there being no way by which the vendee or his employee could inspect the valve, the defendant is chargeable with knowledge that oxygen under such pressure is dangerous and that it would be removed from the tank through the valve, and owed to the public the same degree of care to have the valve in a safe working condition that it owed to have the tank of sufficient strength to withstand the pressure.
4. ____: Instruction: Hypothesizing Defective Construction: Recovery for Clogged Valve. Where there is no evidence of defective construction, an instruction which in its first part tells the jury "if the tank" in which the oxygen was contained was "defective, unfit and unsafe in construction or condition," but does not require them to find negligence in the construction, is not erroneous, where the petition alleges that the valve of the tank was defective, unfit and unsafe and the instruction further on requires the jury to find that the valve was clogged and obstructed and requires the jury to find that the unsafe condition of the valve was negligence and the cause of plaintiff's injury.
5. EXCESSIVE VERDICT: Abandonment. An assignment in the motion for a new trial that the verdict is excessive will be treated as abandoned on appeal where there is no mention of the question in either assignments of error, points or argument.
Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 1476, p. 1340, n. 42½; 4 C.J., Section 3057, p. 1068, n. 22. Negligence, 45 C.J., Section 327, p. 888, n. 82, 83; Section 332, p. 893, n. 69; Section 484, p. 918, n. 91; Section 877, p. 1319, n. 29; Section 898, p. 1331, n. 26; Section 909, p. 1335, n. 92.
Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.
AFFIRMED.
Thomas H. Kingsley and George Kingsley for appellant.
(1) Respondent failed to make out a case of simple negligence. From the testimony presented in his behalf it appears that appellant could not reasonably have anticipated that any injury would result from any acts or omissions on the part of appellant shown in the evidence. It clearly appears that the injury if it happened as respondent infers was the result of a chain of exceptional circumstances which no prudent person could have foreseen. It is necessary that the defendant should have anticipated that some bodily injury would be likely to result from its acts or omissions before they can be held to constitute negligence. American Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. St. Louis, 167 Mo. 620; Chandler v. Gas Co., 174 Mo. 321; State ex rel. Lusk v. Ellison, 271 Mo. 463; Zasemowich v. Mfg. Co., 213 S.W. 799. (2) Respondent's theory of the case rests upon certain facts, the existence of which are necessary to establish that theory. Some of these facts are based upon mere surmise and are without evidence to support them. One in particular is the fact that the valve of the tank was caused to be obstructed or clogged by some act or omission of appellant. There was no evidence that the valve was actually obstructed when the tank left the custody of appellant, and it was not shown where the tank had been between the time it left appellant's hands and the time of the accident, nor how long it had been out of the control and custody of appellant. Again, the obstruction might have been in the pipe-line attached to the tank instead of the valve of the tank. But the pipe-line was attached to the tank by McLeod, and belonged to him. It had been in his shop for some time prior to the accident. There was no showing that it had been examined immediately before it was attached to the tank and found to be unobstructed. So the valve may have been obstructed by some agency or by some person over which appellant had no control, or the obstruction may have been in the pipe-line and not in the valve at all. The rule is well established that "if the injury may have resulted from one of two causes, for one of which and not the other the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant and is liable produced the result, and, if the evidence leaves it to conjecture, the plaintiff must fail in his action." Warner v. Railroad, 178 Mo. 125; Graefe v. Transit Co., 224 Mo. 263. (3) The manufacturer and vendor of an article is not liable to a third person with whom he has no contractual relations who is injured by the article unless the article in the condition in which it was sold was a thing imminently dangerous to life or limb, either inherently or because of some defect. Even if mere negligence were shown in this case it would not be enough to establish liability on the part of appellant. It would have to be shown in addition that appellant's negligence rendered the tank of oxygen a dangerous object. It cannot be said that the tank of oxygen was a necessarily dangerous agency. Heizer v. Kingsland Mfg. Co., 110 Mo. 605; Tipton v. Barnard Leas Mfg. Co., 302 Mo. 162; Loop v. Litchfield, 42 N.Y. 351; Losee v. Clute, 51 N.Y. 494; Husett v. Case Threshing Machine Co., 120 F. 865; Marquardt v. Ball Engine Co., 122 F. 374; Glaser v. Seitz, 79 N.Y.S. 942; Bruckel v. Milhous, 102 N.Y.S. 395; McCoffrey v. Massberg Mfg. Co., 23 R.I. 381; O'Neill v. James, 138 Mich. 567; Heindirk v. Elevator Co., 122 Ky. 675; Lebourdale v. Vitrifield Wheel Co., 194 Mass. 341. (4) Even if it should appear from the evidence that on account of appellant's negligence the tank of oxygen was in such a defective condition that when sold it constituted a dangerous agency, appellant would not be liable unless it further appeared that appellant had actual knowledge of its defective condition. If the tank of oxygen was in a defective condition when sold, there is not a particle of evidence in the case that appellant had any knowledge whatever of such defect or defects. Heizer v. Kingsland Mfg. Co., 110 Mo. 605; Tipton v. Barnard Leas Mfg. Co., 302 Mo. 162. (5) For the reasons stated under preceding points the instruction number one given at the request of respondent is clearly erroneous.
Darius A. Brown and Maurice Weinberger for respondent.
(1) In passing upon defendant's demurrer to the evidence, plaintiff's testimony must be accepted as true, the most favorable view must be given the most favorable testimony, and all reasonable inferences to be derived therefrom must be viewed in the light most favorable to the cause of action. Sullivan v. Railroad Co., 271 S.W. 988. (2) Defendant may be held liable for anything which, after the injury is complete, appears to have been the natural and probable consequence of the act or omission. Smith v. St. Joseph Ry. L.H. P. Co., 276 S.W. 610; Buckner v. Stockyards Co., 221 Mo. 700. (3) Under the evidence taken in its most favorable aspect to plaintiff, and adopting those inferences most favorable to the plaintiff's cause of action, the explosion resulting in injury to plaintiff could not have reasonably resulted from any other cause than the defect in the valve of the tank furnished by appellant for the use of McLeod. (4) Want of contractual relation between appellant and respondent is immaterial. Stolle v. Anheuser Busch, 307 Mo. 520; Kearse v. Seyb, 200 Mo. App. 645; Kiser v. Suppe, 133 Mo. App. 19; Huset v. Machine Co., 129 F. 865; Roddy v. Railroad, 104 Mo. 234; Keep v. Nat. Tube Co., 154 F. 121; Olds Motor Works v. Shaffer, 145 Ky. 616; Johnson v. Cadillac, 261 F. 878; McPherson v. Buick, 217 N.Y. 382; Hayes v. Coal Co., 150 Mass. 457; Swan v. Jackson, 55 Hun (N.Y.) 194; Sweeney v. Rozell, 64 N.Y.S. 721; Elliott v. Hall, 15 Q.B.D. 315; Young v. Waters-Pierce Oil Co., 185 Mo. 662; Applegate v. Railroad, 252 Mo. 197; Strayer v. Railroad, 170 Mo. App. 514; Fossbinder v. Railroad Co., 126 Mo. 563; Sykes v. Railroad Co., 178 Mo. 693; Herman v. Markham, 258 F. 475; Casey v. Bridge Co., 114 Mo. App. 514. (5) The rule of liability to be applied in a case of this kind under the facts shown was clearly stated by this court in Stolle v. Anheuser Busch, 307 Mo. 520.
This is a suit for personal injuries, alleged to have been received by plaintiff as a result of the negligence of defendant. The facts are as follows:
Plaintiff is the son of John McLeod, who, on the 9th of January, 1917, and for nine years prior thereto, operated a welding shop in Kansas City, Missouri, under the name of the Oxy-Acetylene Welding Company. The defendant manufactured oxygen, and during the eight months prior to plaintiff's injury had sold about one hundred tanks of oxygen to plaintiff's father for use in his welding business. The oxygen was delivered in steel tanks of two hundred cubic feet capacity and at a pressure of 1800 pounds to the square inch. The tanks were cylindrical in shape, twelve inches in diameter, five feet in height, stood upright on a flat base, and were equipped with a brass valve at the top of the tank, with an outlet of three-sixteenths of an inch in diameter. The tanks were not sold to McLeod, Sr., but were returned to defendant when empty. McLeod, Sr., had a low pressure tank, and on a delivery of oxygen would transfer it from the defendant's tank to his tank by connecting the tanks with a steel pipe, about two and a half feet in length, which pipe-line consisted of two pieces of pipe and three brass couplings.
On the afternoon of the 9th of January, 1917, defendant delivered two tanks of oxygen. Thereupon, McLeod, Sr., directed one Braymer, an employee, to transfer the oxygen to the McLeod tank. The connection having been made, Braymer "cracked" or slightly opened the valve of defendant's tank to permit the oxygen to flow into the McLeod tank. When oxygen flows through the connecting pipe-line it makes a hissing sound and tends to make the pipe cold. No such sound followed the opening of the valve on this occasion and the pipe was not cold. Braymer then knew the oxygen was not flowing. This caused him to believe defendant had delivered an empty tank, as had occurred on a former delivery. Accordingly he closed the valve on defendant's tank and disconnected the two tanks by removing the pipe-line, leaving attached to the valve of defendant's tank a brass coupling. Then, to determine whether the defendant's tank was in fact empty, he again opened the valve thereon and held his hand over the opening. It seems that when a tank is emptied of oxygen, in a commercial sense, some little of the gas will still remain. After holding his hand in this position for a short time, he concluded there was no oxygen in the tank and left the valve open. In a few seconds the gas, with 1800 pressure to the square inch, forced itself through the valve, with a loud report and in an explosive manner, driving into Braymer's face particles of rust or metal, causing the tank to topple over and the brass coupling on the valve to strike a steel table, thereby chipping a piece from the brass coupling and driving it into the skull of plaintiff, who was standing about eight feet from the tank.
Plaintiff was fifteen years of age, attended school and after school hours made collections for his father. He had collected a bill and was there to turn over the money. Braymer had been working for McLeod a year, and during this time always attended to transferring the gas from defendant's tank to McLeod's tank. On this occasion the transfer was being made in the usual manner. The next morning an employee of defendant's came to McLeod's, the tank was opened, turned upside down and water flowed from the tank, a sample of which was placed in a bottle by McLeod, Sr., and exhibited to the jury.
It is the contention of plaintiff that the opening in the valve of defendant's tank was clogged and stopped by an accumulation of rust or other foreign matter which prevented the escape of oxygen when the valve was "cracked" or slightly opened. Other facts will be noted.
The negligence charged is as follows: (a) that as the direct result of the negligence of defendant in furnishing a defective, unfit and unsafe tank for the purposes for which it was intended by defendant to be used plaintiff was injured; (b) that defendant knew or should have known that oxygen when confined in a tank with a pressure of 1800 pounds to the square inch is likely to cause injury if the tank is defective, unfit or unsafe in construction or condition; (c) that defendant knew or should have known that if the tank was defective, unfit and unsafe in construction or condition for the purposes for which defendant intended it to be used, injury would likely result to those using the tank for said purposes, or to those in close proximity to the tank while the same was being used; (d) that it was the duty of defendant to furnish a tank which was in a proper, secure, fit and safe condition to be used for the purpose for which defendant intended it to be used; (e) that defendant ignoring this duty furnished a tank which was defective, unfit and unsafe for said purpose in this, that the valve of said tank through which the oxygen was to be removed was clogged, obstructed and rendered unfit for use by the presence in said valve of water, rust or other substances so that the free escape of the oxygen from the tank in the usual manner was prevented; that at the time of furnishing the tank defendant knew or should have known of its defective condition and omitted to use reasonable care to discover its defective condition.
Answer is a general denial. At the close of plaintiff's evidence, defendant tendered a peremptory instruction in the nature of a demurrer, which was refused. Defendant offered no evidence and tendered no instructions. The case was submitted on instructions given at the request of plaintiff. Judgment was for $12,000, and defendant appealed.
I. Appellant contends there was no evidence that the valve of the tank was obstructed when it left the custody of appellant. Within fifteen minutes after the delivery of the tank the connection was made between the tanks for the purpose of transferring the oxygen to the McLeod tank. If the valve became clogged after the tank left the custody of appellant, it must have done so within this fifteen minutes. There is no evidence that the valve was handled by any one during this fifteen minutes. It is also contended that the obstruction might have been in the pipe-line connection instead of in the valve of the tank. The pipe-line, the couplers and the tank were exhibited to the jury. It does not appear that appellant directed the jury's attention to any evidence of rust in the pipe-line or the couplers. If the valve had not been clogged, the oxygen would have instantly rushed from the tank when Braymer completely opened the valve. These questions were for the jury; the contentions are overruled.
II. Appellant contends that it owed no duty to respondent; that no contractual relation existed between them. The rule invoked is stated by a standard text as follows: "The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third persons who have no contractual Duty to relations with him for negligence in the Bystander. construction, manufacture or sale of such article." [2 Cooley on Torts (3 Ed.) pp. 1486 et seq.] There are three exceptions, stated in 29 Cyc. 478, as follows:
"1. Where the negligent act is imminently dangerous and is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life; (2) where the act is that of an owner combined with an invitation to the party thereby injured to use the defective appliance on such owner's premises; (3) where the act consists in the sale and delivery of an article with knowledge of undisclosed danger and without notice of its qualities, whereby any person is injured in a way that might reasonably have been expected."
The cases are reviewed in Tomlinson v. Armour Co., 19 L.R.A. (N.S.) 923 (note), and Mazetti v. Armour Co., 48 L.R.A. (N.S.) 213 (note). We have approved the rule with its exceptions in the following cases: Heizer v. Mfg. Co., 110 Mo. 612; Tipton v. Mfg. Co., 302 Mo. 179, 275 S.W. 791; Roddy v. Mo. Pac. Ry. Co., 104 Mo. l.c. 246; Young v. Waters-Pierce Oil Co., 185 Mo. l.c. 654.
In MacPherson v. Buick Motor Car Co., 217 N.Y. l.c. 389, wherein defendant was held liable when an automobile, manufactured by defendant and purchased by plaintiff from a dealer, collapsed because of a defective wheel, the court said:
"If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."
The MacPherson case was followed and approved in the case of Johnson v. Cadillac Motor Car Co., 261 F. 878; Cadillac Motor Car Co. v. Johnson, 221 Fed. l.c. 805.
In Keep v. National Tube Co., 154 F. 121, wherein the defendant manufacturer was held liable to plaintiff's intestate, an employee of the vendee, who was killed by the bursting of a cylinder under pressure, the court said, at page 128:
"If these averments set forth any legal duty owing from the defendant to Keep, it was not a duty arising out of contract. The only contract referred to is the one between the defendant and Keep's employer. Keep was a stranger to that contract, and could acquire no rights under it. Nor are the averments based on the theory of any contractual relations between the defendant and Keep. The gravamen of the complaint is negligence, and not breach of contract, or fraud or deceit. The question, then, is not whether the defendant is guilty of a breach of contract, or suppressed facts amounting to fraud, or made representations amounting to deceit, but whether it owed to Keep the duty of reasonable care in the manufacture of the cylinder. According to the averments, which on this demurrer must be accepted as true, the cylinder was delivered to Keep's employer for use in storing gases at a pressure exceeding 3600 pounds to the square inch. It is obvious that if, by reason of a latent defect, it was incapable of withstanding a pressure greater than one-third of 3600 to the square inch, it would become a thing highly dangerous to any one who might be near it when applied to its intended use. The law declares that a vender of poisonous drugs must carry on his business with due regard for the safety of the public, as well as his vendees. Such a rule is founded on the demands of social justice. It has often been applied to sales of things inherently dangerous. In the present case, the cylinder was not of itself a dangerous thing. It became so only when charged with gas; but it was made for the purpose of being charged with gas. Uncharged, it was a useless thing. When applied to the only use for which it was made, it exploded and killed the plaintiff's intestate. If the explosion was due solely to negligence in the manufacture of the cylinder, why should not the manufacturer respond in damages for its negligence? The authorities on the point are not harmonious; but the better doctrine, it seems to me, is that the manufacturer of a thing inherently dangerous, or of a thing which when applied to its intended use becomes dangerous, is liable in damages to any one who, without fault on his part, sustains injury which is the natural and proximate result of the manufacturer's negligence."
In Statler v. Ray Mfg. Co., 195 N.Y. l.c. 480, 88 N.E. 1063, the defendant was held liable when a coffee urn purchased by plaintiff's employer from defendant exploded and injured plaintiff on the theory "that defendant well knew the purposes for which its urn was to be used; that the latter was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed; that the defendant negligently and carelessly constructed it so that it was imminently dangerous when employed as intended to be; and that as the natural and direct result of this negligent and heedless conduct the urn exploded and the plaintiff was injured."
In Van Winkle v. Boiler Ins. Co., 19 Atl. l.c. 475, wherein the defendant, having undertaken the inspection of the boiler, was held liable for damages to the property of the plaintiff by the explosion of the boiler, the court said:
"And it would seem that there is a broader ground than the one above defined, on which the present case can be based. It is this: that in all cases in which any person undertakes the performance of an act, which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty, the obligation to exercise such care and skill. The law hedges round the lives and persons of men with much more care than it employs when guarding their property, so that, in that particular, it makes, in a way, every one his brother's keeper; and therefore it may well be doubted whether in any supposable case redress should be withheld from an innocent person who has sustained immediate damage by the neglect of another in doing an act which, if carelessly done, threatens, in a high degree, one or more persons with death or great bodily harm. Such misfeasances, if they result fatally, are indictable crimes. When they inflict particular damage upon individuals, they should, it is conceived, be actionable."
In Stolle v. Anheuser-Busch, 307 Mo. l.c. 529, 271 S.W. l.c. 500, wherein the plaintiff's wife, an innocent by-stander, was injured by the explosion of a bottle of "Budweiser," we said:
"These bottled beverages, containing explosive gases, are put upon the market with the intention that they will be transported throughout the country and sold to consumers for the profit of the manufacturer. Obviously, this should be at his risk. Public policy requires that the manufacturer should assume the risks and hazards of explosion incident to the reasonable and ordinarily careful transportation and handling of these goods in the usual course of business. The rule of liability announced in Grant v. Bottling Co., supra, is sane, logical, reasonable and practical and in accord with the rule of decision in this State. It is fair to the manufacturer, and will afford the consumer of the beverage and those handling it in the ordinary course of trade reasonable protection, while the contrary rule leaves them practically without redress."
In the instant case there is no evidence that the defendant knew the valve was clogged, and there is no charge or evidence of fraud. The question for solution is whether the defendant owed a duty of care to the public.
The early cases limited exception one to things in their nature destructive, such as poisons, explosives, and deadly weapons. [Huset v. Case Threshing Machine Co., 120 F. 865.] We think the exception should be extended to include "a thing which when applied to its intended use becomes dangerous," although not inherently so. There is no reason why the principle should not apply to things imminently dangerous, whether inherently so or not. Appellant knew the oxygen under such pressure was a dangerous thing and knew it would be removed through the valve. Indeed, appellant intended it to be so removed. There was no way for McLeod, Sr., or his employees to inspect the valve. It was the duty of appellant to do so before the tank was filled. There was no improper handling of the tank or the valve by Braymer in his effort to transfer the gas. He proceeded in the usual way, and no trouble had been experienced in making the transfer on former occasions. When he "cracked" or slightly opened the valve no gas escaped. He concluded the tank was empty. This was not an unreasonable conclusion, for on one or more occasions appellant had delivered to McLeod, Sr., an empty tank. Believing the tank to be empty, he completely opened the valve; and, in a few seconds, the high pressure forced the gas through the obstructed valve. Appellant owed to the public the same duty of care to have the valve in working condition that it owed to have the tank of sufficient strength to withstand the high pressure of gas. The question of proximate cause was for the jury. [Smith v. St. Joseph Ry. L.H. P. Co., 276 S.W. l.c. 609.] It is insisted by appellant it could not reasonably have anticipated that injury would result from the clogged condition of the valve. In ruling on the question in the case of Buckner v. Horse Mule Co., 221 Mo. l.c. 710, we said: "It is not essential that defendant could have anticipated the very injury complained of, or that it could have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury." [Dean v. Railroad, 199 Mo. l.c. 411, 97 S.W. 910; Harrison v. Light Co., 195 Mo. l.c. 629, 93 S.W. 951; Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S.W. 257.] The contentions are overruled.
III. Appellant complains of the following instruction, given at the request of respondent:
"The court instructs the jury that if you find and believe from the evidence that on the 9th day of January, 1917, the defendant sold and delivered to the Oxy-Acetylene Welding Company about two hundred cubic feet of oxygen confined in a steel tank or container in which the pressure of said oxygen was Instruction: about 1800 pounds to the square inch; that said Defective steel tank or container was furnished by defendant Construction. for the purpose and use of containing and storing said oxygen until the same could be removed therefrom by said Oxy-Acetylene Company to the tanks or other containers of said company; that defendant knew, or by the exercise of ordinary care could have known, if so, that oxygen, when contained in a steel tank or container with a pressure of 1800 pounds to the square inch, is a thing or substance obviously likely to cause injury if the tank in which the same is contained is defective, unfit or unsafe in construction or condition; that defendant knew, or by the exercise of ordinary care, could have known, that if said tank was defective, unfit or unsafe in construction or condition for the purpose and use for which defendant intended the same to be used, injury would be likely to result to those using the said tank for the purpose and use it was intended by defendant to be used, or in close proximity thereto while same was being so used; and that defendant negligently, if so, furnished a steel tank which was defective, unfit and unsafe for said purpose and use, if so, in this, that the valve of said tank through which said oxygen was to be removed, when said tank was furnished by defendant, was clogged and obstructed and rendered unfit for said use by the presence in said valve of water, rust and other matters and substances so that free escape of said oxygen from said tank in the usual manner was prevented; that at the time of furnishing said tank defendant knew, or by the exercise of ordinary care could have known, of the defective condition, if any, or omitted to use ordinary care to discover its defective condition, if any; and if you further find and believe that as the direct result of the negligence of defendant, if any, the plaintiff was injured, then your verdict will be for the plaintiff, and provided you find plaintiff was in the exercise of ordinary care for his own safety."
Appellant's criticisms of the instruction rest on its contentions heretofore overruled. The petition charges the tank to be defective, unfit or unsafe in construction or condition. There is no evidence of defective construction. While the first part of the instruction refers to defective construction, yet when the jury is required to find the negligence, if any, of the defendant, the question of the construction of the tank is omitted. The instruction is within the negligence alleged in the petition, is supported by the evidence, and we think correctly declares the law. The contention is overruled.
IV. Respondent suffered serious injury. A small piece of steel or iron penetrated his skull about an inch and a half, wholly destroying the sight of his left eye, necessitating an operation, and causing respondent great pain and suffering. While Excessive appellant in its motion for a new trial charged the Verdict. verdict to be excessive, the question is not mentioned in either its assignment of errors, points and authorities or argument; therefore, we will treat the assignment as having been abandoned. It follows the judgment should be affirmed. It is so ordered. All concur.