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August 5, 1958


The opinion of the court was delivered by: Oxner, Justice.

Aug. 5, 1958.

This action was brought in February, 1955, by James C. Brown against National Oil Company and Herbert Taylor, one of its tank truck drivers and salesmen, to recover damages resulting from a fire alleged to have been caused by the negligence of the defendants. Brown died on April 24, 1955. Thereafter his widow, Mrs. Blanche C. Brown, was appointed administratrix of his estate and an appropriate order entered substituting her as party plaintiff. The case was tried in January, 1956. Timely motions by defendants for a nonsuit and a directed verdict were refused. The jury returned a verdict in favor of the plaintiff against defendant National Oil Company alone for $15,000.00 actual damages, thereby absolving the defendant Herbert Taylor. (The trial Judge held that there was no evidence to support a verdict for punitive damages.) Thereafter the Court granted a motion by the National Oil Company for judgment non obstante veredicto upon the ground that there was no evidence of negligence on the part of the National Oil Company apart from that of defendant Taylor. From this order, plaintiff has appealed.

On the morning of August 3, 1954, a combination filling station and country store operated by plaintiff's intestate was destroyed by fire. This business was located at Pauline, a small community about ten miles south of Spartanburg on S.C. Highway No. 56. Plaintiff and his family lived in the rear of the store. The property was owned by one W.G. Smith who leased it to the National Oil Company. In 1945 the Oil Company sublet the premises, including the gasoline tanks and equipment, to plaintiff's intestate. The service station equipment was kept in repair by the Oil Company. The pumps were mounted on a concrete "island" in front of the store. They consisted of two electrically operated gasoline pumps, one for high test and the other for regular gas, a hand pump for high test gas, referred to as a "visible pump", and an electrically operated kerosene pump. The visible pump had a round glass container at the top with a capacity of ten gallons and was only used when the electric current was off. There was a concrete apron between the pumps and the front door of the store ample in width to permit a motor vehicle to be driven thereon. A roof or shed extending from the store building furnished shelter for the apron and the gasoline equipment on the island.

All gasoline used at this service station was purchased from the Oil Company. Deliveries were made about twice a week. Around 11:00 A.M., on August 3, 1954, a clear, hot day, defendant Herbert Taylor drove one of the Oil Company's tank trucks under the shed to deliver gasoline. When he had filled the underground tank holding regular gasoline, the truck was moved a short distance in order to fill the high test underground tank. After connecting the hose with the "filler pipe" and opening the valve to let the gas in, Taylor sat down in a chair about 12 feet from the filler pipe and commenced making out his tickets. An employee of plaintiff's intestate, Francis Johnson, was on top of the truck checking the gasoline delivery. A son, Jimmy Brown, was standing near the back of the truck. Alfred West, a bystander, who was an occasional customer and a frequent visitor at the store, was sitting on the concrete island about three or four feet from the filler pipe with his back against the visible pump. James C. Brown and his wife were inside the store. While the gasoline was flowing into the high test tank, West struck a match to light a cigarette. Taylor undertook to stop him but it was too late. This ignited gasoline fumes or vapor concentrated under the shed. There was immediately, according to Taylor, "a big flash," "all the fumes in the air they flashed." All those in front of the store ran. The fire soon settled around the filler pipe. Taylor returned and got a fire extinguisher from the truck for the purpose of extinguishing this blaze. He says he told the others to "leave it alone and I will put it out." According to plaintiff's testimony, Taylor was not able to operate the fire extinguisher. Plaintiff's intestate, who had run out of the store when someone hollered "fire", then took it and was also unsuccessful in getting it to work. About this time West pulled the hose from the filler pipe with the gasoline flowing. This resulted in a general fire all over the front of the place. In the excitement West got in the truck and with the gasoline flowing drove it off the premises and stopped in a nearby field. Several persons working at a place of business located nearby then came over with fire extinguishers, but it was too late to do anything with the fire. All the contents of the store were destroyed.

The expert witnesses for the plaintiff testified that it was extremely hazardous to operate a filling station which had no vent — a pipe attached to the underground tank for the escape of air and gasoline fumes. They said without this means of escape fumes will concentrate around the filler pipe when gasoline is poured into the underground tank, and that without a vent there is also the likelihood of a "blowback." Their testimony was further to the effect that these vent pipes should be placed on the back or side of the building away from traffic and from doors and windows and should extend at least ten feet above the ground so as to eliminate the risk of being ignited. Unless so placed there is considerable danger of ignition in areas frequented by the public.

Several witnesses for plaintiff testified there were no vents at this filling station. The Oil Company contends that the pipe on the visible pump through which surplus gasoline was returned to the underground tank functioned as a vent pipe and that there was also a hole in the top of the glass receptacle which allowed the escape of air and gasoline fumes, but one of the expert witnesses testified that neither of these was sufficient as a vent. One of the Oil Company's employees testified that about six months before the fire, he was instructed by his superior officer to install two electric gasoline pumps at this station and to "go down in there where that valve comes out on that visible pump and put a practical vent in there like was supposed to be in there." This is a clear recognition of the inadequacy of the vents at this filling station. It is also of interest to note that when new pumps were installed after the fire, the service station was equipped with vents in accordance with the standard which plaintiff's witnesses testified was essential to safety in the operation of a filling station.

It is argued that neither the lack of vents nor improper vents caused the concentration of fumes under the shed. Counsel for the Oil Company call attention to the fact that although there had previously been numerous instances of "blowbacks" when filling the underground tanks, there is no evidence of a "blowback" occurring on the morning of the fire. They further point out that according to the experts some fumes escape around the filler pipe even if there are proper vents. But we think it could be reasonably inferred from the testimony that if proper vents have been installed, there would not have been an appreciable amount of fumes on the morning of the fire. The experts said that only a negligible amount escapes around the filler pipe when there are proper vents. The fact that there was a "big" flash causing everyone to run indicates that there was a rather heavy concentration of fumes under the shed.

We conclude that the jury could have reasonably found negligence on the part of the Oil Company in failing to provide adequate vents thereby causing a heavy concentration of gas fumes under the shed of this service station. The next question is whether it can be reasonably inferred that such negligence was a proximate cause of the fire. The contention of the Oil Company is that the striking of the match by West was an intervening cause and that the chain of causation was further broken by his act in pulling the nozzle of the hose from the filler pipe, thereby converting, according to the Oil Company, a small harmless blaze which could have been easily extinguished into a general fire which could not be controlled.

The general principles are well settled, although their application frequently presents considerable difficulty. In Pfaehler v. Ten Cent Taxi Co., 198 S.C. 476, 18 S.E.2d 331, 335, the Court quoted the following with approval:

"It is universally agreed that the mere fact that the intervention of a responsible human being can be traced between the defendant's wrongful act and the injury complained of will not absolve him. On the contrary the general rule is that whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary course of events, though such consequences are immediately and directly brought about by an intervening cause, if such intervening cause was set in motion by the original wrongdoer, or was in reality only a condition on or through which the negligent act operated to produce the injurious result. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence have been foreseen, the last result, as well as the first, and every intermediate result is to be considered in law as the proximate result of the first wrongful cause. The question always is, was there any unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise."

It is equally well settled that to establish liability, it is not necessary that the person charged with negligence should have contemplated the particular event which occurred. It is sufficient that he should have foreseen that his negligence "would probably result in injury of some kind to someone. The wrongdoer may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his negligence." Hicklin v. Jeff Hunt Machinery Co., 226 S.C. 484, 85 S.E.2d 739, 743. "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." Restatement, Torts, Section 435.

In 38 Am. Jur., Negligence, Section 64, it is stated: "The rule is that when an injury occurs through the concurrent negligence of two persons, and it would not have happened in the absence of the negligence of either person, the negligence of each of the wrongdoers will be deemed a proximate cause of the injury, although they may have acted independently of one another; and both are answerable, jointly or severally, to the same extent as though the ...

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