Ashley v. Jones

98 S.E.2d 667 (1957)

246 N.C. 442

F. D. ASHLEY and Guy F. McCormlck, partners, operating under the firm name of Fairmont Gas Company, v. J. Wilbur JONES, trading as Jones Transfer.

No. 745.

Supreme Court of North Carolina.

June 7, 1957.

*668 Nance, Barrington & Collier, Fayetteville, Floyd & Floyd, Fairmont, McLean & Stacy, Lumberton, for defendant, appellant.

Varser, McIntyre, Henry & Hedgpeth, D. M. Britt, Lumberton, for plaintiffs, appellees.

HIGGINS, Justice.

This appeal presents the question whether the evidence was sufficient to go to the jury on the defendant's counterclaim. If sufficient, the order permitting the plaintiffs to take a voluntary nonsuit was error. A plaintiff has no right to get out of court to escape a counterclaim against him. If the order of the court dismissing the counterclaim is correct, after it was dismissed and out of the way the plaintiffs had the right to take a voluntary nonsuit. Was the evidence sufficient to require the submission of the counterclaim to the jury?

The evidence pertinent to decision in its light most favorable to the defendant may be thus summarized: The gas tank on the plaintiffs' truck had a capacity of 1,000 gallons. The plaintiffs used it to deliver liquid petroleum or propane gas. Pressure was maintained at about 200 pounds per square inch. Upon release from pressure the gas would become "a vapor formation." For a period of two or three weeks prior to August 3, 1954, the union between the tank and the pump had been leaking. Efforts to repair the leak had been attempted by the plaintiffs' agents and had been unsuccessful. The plaintiffs had knowledge the leak continued. On August 3, 1954, the truck to which the gas tank was attached was delivered to the defendant's garage for repairs, not with respect to the leaking pipe, but to the differential housing. At the time the gauge to the tank showed there were 125 to 150 gallons of liquid petroleum under pressure in the tank. The defendant was not advised and had no knowledge there was a leak in the pipe which permitted the gas to escape and upon being released from the pressure to become vaporized, highly volatile, and explosive if exposed to fire or spark. The defendant at the time the truck was delivered to him for repairs did not have available parts necessary to complete them. While awaiting parts the truck was stored for the night in the garage part of the defendant's building. The doors and windows to that part of the structure were closed. Later that night a door between the garage part of the building and the driver's room was opened and a strong odor of propane gas came through the door. Two of defendant's employees entered the garage and immediately thereafter a terrific explosion occurred in the garage, blowing the roof from the building and demolishing a part of the walls. Immediately fire flashed *669 all over the garage. The building and its contents were completely destroyed. An expert witness, in answer to a hypothetical question, expressed the opinion that the explosion was caused by the ignition of propane gas.

Was it not the duty of plaintiffs to warn the defendant there was a leak in their tank which permitted propane gas to escape and which could and would explode if ignited? "It is a scientific fact that `gas ordinarily used for fuel is so inflammable that the moment a flame is applied it will immediately ignite with an instant explosion' * * *. Gas is a dangerous substance when it is not under control." Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 761, 17 A.L.R. 2d 881; Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689. A gas company is answerable in damages for negligence if it fails to use reasonable care to prevent its escape, if the failure is the proximate cause of injury to persons or property. 24 Am.Jur., Gas Companies, secs. 20, 21 and 22; 38 C.J.S. Gas §§ 40, 41 and 42.

When viewed in the light of applicable principles of law the evidence appears sufficient to require its submission to the jury. Evidence favorable to the plaintiffs must be disregarded in passing on the motion for nonsuit. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561. "This being true, the court can not properly enter a compulsory nonsuit and thereby withdraw the case from the jury if the facts are in dispute, or if the testimony in relation to the facts is such that different conclusions may reasonably be reached thereon." Graham v. North Carolina Butane Gas Co., supra.

For the reasons indicated, the judgment of the Superior Court of Robeson County is

Reversed.