Ellis v. Sinclair Refining Co.

Barnhill, J.

Tbe decisions of this Court are all in accord that in order to establish actionable negligence it must appear: First, that tbe defendant has failed to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff under tbe circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances when charged with a like duty; and, second, that such negligent breach of duty was tbe proximate cause of tbe injury. It must not only appear that tbe negligent act produced tbe result in continuous sequence, but it must further appear that tbe negligent act was such that any man of ordinary prudence could have foreseen that such a result, or some similar injurious result, was probable under all tbe facts as they then existed.

Applying tbe generally accepted rule governing tbe establishment of actionable negligence, after a careful examination of tbe evidence in this cause, we are unable to discover any error in tbe judgment below.

Conceding that plaintiff’s intestate continued to maintain tbe status of a customer after be purchased and consumed tbe Coca-Cola and remained in tbe station in play with tbe witness Harkey, we cannot con- *391 eeive that the defendants owed him any duty to keep the small storage room in which he was injured free of a motor or banana oil used in the course of its business. Both the motor and the banana oil or paint thinner were necessary in the conduct of the business of the defendants. They were not stored where a customer would likely come in contact with them.

Even if it is further conceded that it was an act of negligence to store inflammable substances in the same room in which a spark emitting motor was located, to say that the defendants should have foreseen that a customer would rush into the room, slam the door and in some manner cause the ignition of flames which would burn him and cause his injury and death is placing upon the operators of the filling station a degree of prevision not contemplated by the law of negligence.

In principle, Clark v. Drug Co., 204 N. C., 628 , 169 S. E., 217 , and Money v. Hotel Co., 174 N. C., 508 , 93 S. E., 964 , are in point.

It is not necessary for us to decide whether the evidence offered is sufficient to charge the corporate defendant with the negligent acts of the defendant Robertson, who was operating the station. In no event is either defendant liable in damages for the unfortunate death of plaintiff’s intestate.

The judgment below is Affirmed.