Harding v. H.F. Johnson

1. Explosives. Res ipsa loquitur doctrine applied. In action against common carrier of petroleum products for fire damage to garage and residence when spark ignited escaped gasoline in garage while gasoline was being delivered from carriers truck into underground tank at garage, evidence justified application of the res ipsa loquitur doctrine. 2. Explosives. Handling of gasoline ? Knowledge of character. Those handling gasoline are chargeable with knowledge of its inflammable character and must keep it under control and in confinement. 3. Explosives. Origin of fire immaterial under res ipsa loquitur doctrine. Where plaintiffs relied on doctrine of res ipsa loquitur, the circumstance that the origin of the spark that caused the fire is not definitely known is immaterial. 4. Explosives. Instruction did not deprive defendant from claiming contributory negligence as cause of fire. An instruction that from happening of the fire there arose an inference that the proximate cause of fire was some negligent conduct on the part of the carrier, that inference was a form of evidence, and that if there was no other evidence tending to overthrow the inference, or if the inference preponderated over contrary evidence, a verdict for plaintiffs was warranted, and that it was incumbent on the carrier to rebut the inference by showing that it exercised ordinary care or that the fire occurred without being proximately caused by failure of duty on part of the defendant, was not erroneous on ground that it deprived the carrier of benefit of claiming contributory negligence as proximate cause of fire. 5. Explosives. Instruction that plaintiffs not required to show specific acts of negligence held proper. An instruction that plaintiffs were not required to show particularly what specific act of negligence it was that caused the accident, but were only required to show that the accident was one which would not ordinarily occur had reasonable or ordinary care been employed, was not erroneous. 6. Explosives. Instruction as to control of carrier over thing causing accident held proper. An instruction that when the thing which caused injury is shown to be under the management of carrier, and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in absence of explanation by defendants, that accident arose from want of ordinary care, was not erroneous. 7. Explosives. Instruction as to superior knowledge held properly refused. An instruction that unless carrier has superior knowledge of dangerous condition, if any, which existed immediately prior to and at time of fire, then verdict must be for carrier and against plaintiffs, was properly refused, since superior knowledge was imputable to carrier. - Page 71 8. Appeal and Error. Defendant could not complain of favorable instruction. Defendant could not complain on appeal of instruction more favorable to defendant than facts and law warranted. 9. Evidence. Witness as to worth. The owner of property is a competent witness to estimate its worth. 10. Appeal and Error. Loss of profits. Where evidence supported an award for $28,000 and more for destruction of building and contents by fire, without allowing anything for loss of profits, defendant was not prejudiced by giving of allegedly erroneous instructions authorizing recovery for loss of profits, even though evidence may not have supported award for profits.