{ "id": 2846990, "name": "Francis A. COOK, Plaintiff-Appellant, v. Jackie O'CONNELL, Daniel L. O'Connell and Richard Davis, Defendants-Appeilee", "name_abbreviation": "Cook v. O'Connell", "decision_date": "1959-01-14", "docket_number": "No. 6457", "first_page": "170", "last_page": "174", "citations": [ { "type": "official", "cite": "65 N.M. 170" }, { "type": "parallel", "cite": "334 P.2d 551" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "39 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573409 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/39/0473-01" ] }, { "cite": "46 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563070 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0241-01" ] }, { "cite": "41 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571449 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/41/0346-01" ] }, { "cite": "2 Harper 1111", "category": "reporters:state", "reporter": "Harper", "weight": 2, "pin_cites": [ { "page": "\u00a7 20" }, { "page": "\u00a7 20" } ], "opinion_index": 0 }, { "cite": "171 So. 399", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10043896 ], "opinion_index": 0, "case_paths": [ "/so/171/0399-01" ] }, { "cite": "61 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318178 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0473-01" ] }, { "cite": "103 A.2d 425", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1956, "opinion_index": 0 }, { "cite": "376 Pa. 521", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1246166 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/pa/376/0521-01" ] }, { "cite": "8 Alaska 275", "category": "reporters:state", "reporter": "Alaska", "case_ids": [ 1266819 ], "opinion_index": 0, "case_paths": [ "/alaska/8/0275-01" ] }, { "cite": "279 U.S. 582", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3905886 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/279/0582-01" ] }, { "cite": "130 S.E. 208", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1940, "opinion_index": 0 }, { "cite": "190 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607107 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/190/0474-01" ] }, { "cite": "37 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575392 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/37/0525-01" ] }, { "cite": "54 N.M. 218", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1581984 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0218-01" ] }, { "cite": "45 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565212 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/45/0008-01" ] }, { "cite": "43 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/43/0397-01" ] }, { "cite": "63 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775945 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/63/0439-01" ] } ], "analysis": { "cardinality": 584, "char_count": 8702, "ocr_confidence": 0.705, "pagerank": { "raw": 8.693415524525488e-08, "percentile": 0.4929627171313849 }, "sha256": "176d14f1b67df77da3803ec8dbef19d1f8e081ccd9e6a7a20a6ec959de647556", "simhash": "1:9547e0284de3a9db", "word_count": 1505 }, "last_updated": "2023-07-14T21:31:57.534627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON and CARMODY, JJ., concur.", "LUJAN, C. J., and SADLER, J., not participating." ], "parties": [ "Francis A. COOK, Plaintiff-Appellant, v. Jackie O\u2019CONNELL, Daniel L. O\u2019Connell and Richard Davis, Defendants-Appeilee." ], "opinions": [ { "text": "McGHEE, Justice.\nPlaintiff, Francis A. Cook, filed suit in the District Court of Santa Fe County, New Mexico against three defendants, Jackie O\u2019Connell, Daniel O\u2019Connell (Jackie\u2019s father), and Richard Davis, seeking damages for the destruction of his equipment and personal effects as the result of the alleged negligent burning of a garage leased by him. Service of process was not made upon the O\u2019Connells so the trial before the court without a jury proceeded solely against the defendant, Richard Davis.\nUpon the conclusion of plaintiff\u2019s evidence, including the testimony of the defendant Davis as an adverse witness, the trial judge sustained defendant\u2019s motion for a nonsuit on the grounds that there was no proof of the cause of the fire nor of any negligent act of the defendant. Plaintiff now prosecutes this appeal alleging that he proved a prima facie case of negligence.\nThere is no question that damage occurred or that the plaintiff\u2019s interest was protected against unintentional invasion. Likewise, questions of contributory negligence and assumption of risk are not in issue, and both parties agree that the doctrine of res ipsa loquitur is not relied upon.\nAt this stage of the case, in determining whether the plaintiff\u2019s evidence would support a judgment for him, we accept as true all evidence in the record favorable to his claim, giving him the benefit of all fair and reasonable inferences deducible therefrom and disregarding all evidence and inferences to the contrary. Carney v. McGinnis, 1958, 63 N.M. 439, 321 P.2d 626; Sandoval County Board of Education v. Young, 1939, 43 N.M. 397, 94 P.2d 508; In re Garcia\u2019s Estate, 1940, 45 N.M. 8, 107 P.2d 866; Pilon v. Lobato, 1950, 54 N.M. 218, 219 P.2d 290.\nWith this rule in mind we turn to the ultimate facts established by plaintiff\u2019s evidence.\nO'n the day of the fire, plaintiff occupied a garage building as lessee, using it for a shop or truck terminal. The day before, he had given Daniel O\u2019Connell permission to use the garage and the equipment therein for the purpose of repairing a motor. At some time not clearly brought out in the record, the defendant, Richard Davis, in response to a request by Jackie O\u2019Connell, volunteered to help repair the motor.\nOn the day in question, plaintiff assisted Jackie O\u2019Connell in loading the motor onto a pickup truck belonging to Jackie\u2019s father. Jackie O\u2019Connell drove over to plaintiff\u2019s garage where with the help of the defendant the motor was unloaded. In doing so, they spilled some oil on the garage floor, and the plaintiff asked them not to leave before cleaning up the mess. Plaintiff then left to attend to a job of his own around 10:00 a. m. and when he returned around noon the building was burned down.\nAfter unloading the motor and working on it for a period of time, Jackie O\u2019Connell backed the pickup into the garage along with a drum of gasoline, a pump and a hose in the bed of the truck. Leaving the motor running, he then pumped gasoline from the drum sitting in the bed of the truck through a hose into an open pan placed on the garage floor for the purpose of using the gasoline in cleaning parts of the motor. The defendant, Richard Davis, held the hose to direct the flow of the gasoline into the open pan and to keep it from spilling and spreading upon the floor.\nImmediately before or immediately after the pumping operation ceased, a fire broke out in the vicinity of the pickup, the drum of gasoline, the pump and the hose. Davis jumped into the truck and drove it out of the garage while Jackie O\u2019Connell jumped onto the bed and threw the pump and hose off. The garage and its contents were destroyed by the ensuing fire.\nThe trial judge in granting the motion for nonsuit commented that this evidence merely showed the defendant Davis was holding the hose over the open pan while Jackie O\u2019Connell was pumping gas out of a barrel and concluded that Davis was not the employee, servant or agent of Daniel O\u2019Connell but was only a volunteer; that none of his acts proximately contributed to the starting of the fire or the resulting damages; that he was not negligent; and, that the pumping of the gasoline by Jackie O\u2019Connell was not unlawful.\nAs the record demonstrates, no proof was offered as to where Davis was holding the hose, nor where the open pan was placed in relation to the pickup, nor how long the hose was, nor was there any showing that the exhaust fumes of a running automobile might ignite gasoline or its vapors.\nThe plaintiff asserts, however, that his proof of circumstantial evidence was sufficient to warrant an inference of negligence on the part of Davis within the rule established by the case of Hepp v. Quickel Auto & Supply Co., 1933, 37 N.M. 525, 25 P.2d 197. In other words, the sole issue is whether the plaintiff\u2019s evidence is sufficient to justify, but not to compel, an inference of liability, if the case is submitted to a jury or the court for its determination as a matter of fact. Hepp v. Quickel Auto & Supply Co., supra; In re Garcia\u2019s Estate, supra; McDaniel v. Atlantic Coast Line Ry., 1925, 190 N.C. 474, 130 S.E. 208; Wigmore, 9 Anglo-American System of Evidence In Trials At Common Law 293-300, \u00a7 2494 (3rd ed. 1940).\nIt is a matter of common knowledge, and courts take judicial notice of the fact, that gasoline may easily ignite or explode. Standard Oil Co. v. City of Marysville, 1929, 279 U.S. 582, 49 S.Ct. 430; 73 L.Ed. 856; 24 Am.Jur., Gas and Oil, 658, \u00a7 179. In fact the vapors are probably more inflammable than the gasoline itself. See Simpson v. Standard Oil Co., 1931, 8 Alaska 275.\nHere, the defendant, by participating in the creation of an artificial condition on another\u2019s property which he should have realized involved an unreasonable risk of harm to plaintiff\u2019s property, had a duty to plaintiff to exercise a high degree of care in the use of the gasoline, Pryor v. Chambersburg Oil & Gas Co., 1954, 376 Pa. 521, 103 A.2d 425, or, as is the more modern expression, to exercise that degree of care which a reasonably prudent person would use under the same or similar circumstances. Rivera v. Ancient City Oil Corp., 1956, 61 N.M. 473, 302 P.2d 953; Harper & James, 2 Law of Torts 945, \u00a7 16.13 (1956), hereinafter cited as Harper.\nWe believe it is not an unreasonable inference that the exhaust fumes ignited the gasoline or gasoline vapors since the fire broke out in the vicinity of the truck, the drum, the pump and the hose. Cf. Gershner v. Gulf Refining Co., La.App.1936, 171 So. 399; Simpson v. Standard Oil Co., supra; See Rivera v. Ancient City Oil Corp., supra, dissenting opinion; 2 Harper 1111, \u00a7 20.2. Although no expert testimony was offered, any garageman knows that pouring gasoline near the exhaust pipe of a running automobile creates a high possibility that the vapors will be ignited by the exhaust fumes.\nUnder these circumstances, what actually occurred and whether the defendant\u2019s conduct was a substantial factor in bringing about the plaintiff\u2019s harm are both subject to reasonable differences of opinion. Reasonable and fair-minded men might infer from the defendant\u2019s testimony and conduct as an adverse witness that he held the hose near the exhaust fumes and that this was the proximate cause of the fire. See 2 Harper 1111, \u00a7 20.2.\nUnder our holdings that proximate cause and negligence become questions of law only when the facts regarding causation and negligent act are undisputed and all reasonable inferexxces are plain, consistent and uncontradictory, we must say as a matter of law there was sufficient evidence for the case to go to the court or the jury, as the case may be, for the drawing of inferences. Greenfield v. Bruskas, 1937, 41 N.M. 346, 68 P.2d 921; White v. Montoya, 1942, 46 N.M. 241, 126 P.2d 471; Crespin v. Albuquerque Gas & Electric Co., 1935, 39 N.M. 473, 50 P.2d 259.\nThe effect of our so holding is to give to the defendant, if he desires, an opportunity to rebut these inferences of negligence and to offer a possible explanation of the occurrence. It may be, when both sides have rested, that the trial court will still rule for him on the entire evidence, but as a matter of fact and not as a matter of law.\nThe judgment of the trial court will be reversed and the case is remanded for proceedings not inconsistent with this opinion.\nAnd it is ordered.\nCOMPTON and CARMODY, JJ., concur.\nLUJAN, C. J., and SADLER, J., not participating.", "type": "majority", "author": "McGHEE, Justice." } ], "attorneys": [ "Leslie D. Ringer, Santa Fe, for appellant.", "Iden & Johnson, J. T. Paulantis, Albuquerque, for appellees." ], "corrections": "", "head_matter": "334 P.2d 551\nFrancis A. COOK, Plaintiff-Appellant, v. Jackie O\u2019CONNELL, Daniel L. O\u2019Connell and Richard Davis, Defendants-Appeilee.\nNo. 6457.\nSupreme Court of New Mexico.\nJan. 14, 1959.\nLeslie D. Ringer, Santa Fe, for appellant.\nIden & Johnson, J. T. Paulantis, Albuquerque, for appellees." }, "file_name": "0170-01", "first_page_order": 194, "last_page_order": 198 }