Peterson v. Standard Oil Co.

Mr. Justice McBride

delivered the opinion of the court.

1. The first error assigned is the overruling of defendant’s general demurrer to the complaint. While the *516 complaint is somewhat meager in details, we are of the opinion that it states a cause of action. It charges, in effect, that the merchant Fox ordered certain barrels of Water White kerosene that would stand an open-fire test of 120 degrees Fahrenheit, and that defendant negligently and carelessly delivered to him distillate that would only stand a test of 88 degrees Fahrenheit, such distillate being carelessly and negligently delivered to Fox in a drum labeled “Water White oil” and also labeled to the effect that the same would not burn under 120 degrees Fahrenheit, open-fire test; and relying upon his contract and the label placed by defendant upon the drum, and believing it to be as represented, said merchant, Fox, sold .a small quantity of it to Mrs. Rowley for coal oil and delivered it as. such to plaintiff’s intestate, who was Mrs. Rowley’s domestic, and that plaintiff’s intestate, while trying to kindle a fire with said substance, without any carelessness on her part, was killed by the explosion that resulted; that, if the substance had been as represented, no explosion would have resulted.' This sufficiently alleges, we think, that the direct and proximate cause of the injury was the negligence of defendant. In other words, defendant sold a substance to Fox which would explode at a comparatively low temperature negligently representing it to be a substance that would explode or take fire only at a high temperature, and Fox innocently delivered it to deceased, who, had she received and used what she thought she was receiving and what Fox thought she was receiving, would not have been injured by such use. While it, perhaps, is customary to allege the dangerous nature of such substances, we do not think the lack of such allegation will be fatal on general demurrer.

The use of these distillates has become so general that we think the courts will take notice of their dangerous qualities, especially where the consequences of their use *517 are shown by the complaint to have been accompanied by deadly results. Thus, when gun-powder or dynamite are mentioned, no statement in explanation of their dangerous character is necessary, because they are so universally known, that to name them, is at once a suggestion of their dangerous qualities. Courts take judicial knowledge of what is generally known and of facts that have such general notoriety that any one may be fairly presumed to know them. The class of facts of which judicial notice is taken is concisely stated in Town of North Hempstead v. Gregory, 53 App. Div. 350 ( 65 N. Y. Supp. 867 ), from which we quote:

“In resolving such questions, the judges have recognized that the criterion is the maxim, ‘What is known need not be proved;’ and, beginning with Starkie, who, as Thayer notes, first took special notice of the subject, the text-writers, such as Phillips, Greenleaf, Stephen, Rice, and Burr-Jones, are in accord. Thus, Swayne, J., in Brown v. Piper, 91 U. S. 37 , ( 23 L. Ed. 200 ), says: ‘Facts of universal notoriety need not be proved.’ Com-stock, J., in Wynehamer v. People, 13 N. Y. 378 , says: ‘We must be allowed to know what is known by all persons of common intelligence.’ Daniels, J., in' speaking of the Pulteney title, in People v. Snyder, 41 N. Y. 397 , says: ‘Its early history is a matter of general notoriety and interest throughout the State, and, in fact, of the United States, and for that reason should be judicially noticed.’ Allen J., in Howard v. Moot, 64 N. Y. 263 , says: ‘Courts will take judicial notice of whatever ought to be generally known within the limits of their jurisdiction and that notice should be taken of the present Indian occupancy of the State, as it is a matter of notoriety.’ Folger, J., in Wood v. Insurance Co., 46 N. Y. 421 , says: ‘The matters of which judicial notice may be taken are those which must have happened according to the constant and invariable course of nature, or are of such general and public notoriety that every one may fairly be presumed to be acquainted with them.’ The expression of Brown, J., in Hunter v. Railroad Co., 116 N. Y. 615 , 621 ( 23 N. E. 10 : 6 L. R. A. 246), is that notice may be taken of facts which are generally known; And, *518 as the common knowledge of man ranges far and wide, so the doctrine embraces matters so curiously diverse as, e. g., the rising of the sun, the status of the Isle of Cuba, the late Civil War, the contents of the Bible, the character of a camp meeting, the height of the human frame, the fable of “the frozen snake,’ the characteristics and construction of the ice cream freezer, the general use of the diamond stack or the straight stack spark arrester, the habits of those who shave, in fine, ‘all things, both great and small.’ ”

2. So courts take judicial knowledge of the intoxicating qualities of whisky, gin, and alcohol, and this court has held, in the case of State v. Carmody, 50 Or. 1 ( 91 Pac. 446 , 1081: 12 L. R. A. [N. S.] 828) that it would take judicial knowledge of the fact that beer is intoxicating and it stands to reason that whatever quality in a substance is taken judicial knowledge of is, in effect, pleaded when the substance itself is mentioned, at least that such method of allegation, even if meager and defective, will be sufficient on general demurrer. In addition to this, the failure to properly mark tanks or other receptacles containing kerosene or distillates is made a misdemeanor by our statutes. (Laws 1903, p. 103.) Section 2 of the act of 1903 is as follows:

“Benzole, benzene, gasoline, naphtha, and distillates, must be sold under their true names and grades, respectively, and such names and grades must be impressed or otherwise plainly marked, upon the barrel, can, or vessel in which the same is sold, offered, or exposed for sale, respectively, or upon a label conspicuously and securely fastened thereto; and every barrel, can, or vessel of kerosene or coal oil that is offered or exposed for sale, shall be in like manner plainly marked or labeled with the word kerosene or coal oil, and with the degree, Fahrenheit, of fire test below which the same will not burn. Aiiy person, firm or corporation violating any of the provisions of this section shall be fined the sum of not less than one hundred dollars ($100) nor more than five hundred ($500), or be imprisoned in the county jail not exceeding six months.”

*519 The complaint in this case alleges facts that constitute a violation of this statute, and ye think that such violation constitutes negligence per se. Thompson, Negligence, Volume 1, §§ 10, 11; Brower v. Locke, 31 Ind. App. 353 ( 67 N. E. 1015 ) ; Diamond Block Coal Co. v. Cuthbertson (Ind. App.) ( 67 N. E. 558 ) ; Osborne v. McMasters, 40 Minn. 103 ( 41 N. W. 543 : 12 Am. St. Rep. 698 ) ; Tobey v. Burlington C. R. & N. Ry. Co., 94 Iowa 256 ( 62 N. W. 761 : 33 L. R. A. 496) ; Seimers v. Eisen, 54 Cal. 418 . Authorities to the same effect might be multiplied indefinitely, but the foregoing seem to be sufficient.

In Thompson, Negligence, Volume 1, Sections 10, 11, this language is used: “This seems to introduce in this place a consideration of the antithesis of the proposition contained in the preceding paragraph—the case where the legislature of the State, or the council of a municipal corporation, having in view the promotion of the safety of the public, or of individual members of the public, commands or forbids the doing of a particular act. Here the general conception of the courts, and the only one that is reconcilable with reason, is that the failure to do the act commanded, or the doing of the act prohibited, is negligence as mere matter of law, otherwise called negligence per se; and this, irrespective of all questions of the exercise of prudence, diligence, care, or skill; so that if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains to be done is to assess his damages.”

In Osborne v. McMasters, 40 Minn. 103 ( 41 N. W. 543 : 12 Am. St. Rep. 698 ), which was an action against a druggist for having sold poison without the label prescribed by statute, whereby plaintiff’s intestate was killed, the court say:

“Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of the *520 common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se.”

In Siemers v. Eisen, 54 Cal. 418 , the court, using substantially the language employed in Jetter v. New York & Harlem R. R. Co., 2, Abb. Dec. (N. Y.) 464, say:

“It is an axiomatic truth that every person while violating an express statute is a wrongdoer, and, as such is ex necessitate negligent in the eye of the law, and every innocent party whose person is injured by the act which constitutes the violation of the statute • is entitled ■ to a civil remedy for such injury, notwithstanding any redress the public may also have.”

We are not prepared to say, and express no opinion, as to whether in all cases the violation of a mere city ordinance is negligence per se. In such cases a different question presents itself, namely, whether, under the powers granted in a particular charter to prevent and regulate certain kinds of business, • the city ordinance will have the effect to give a person injured a remedy which is not given by a general statute upon the same subject. In such cases, there is respectable authority for holding that a violation of such ordinances is not negligence per se, but mere evidence of negligence. Since a right of action in civil cases arises either from the common law or from statutes, it may well be doubted whether such cause can arise solely from, the violation of a by-law of a municipal corporation.

It must be confessed, however, that many courts, and perhaps the majority, draw no distinction between State laws and city ordinances; but it seems to have been the *521 opinion of this court, in an early case, that a violation of such ordinance does not constitute negligence per se, but is only evidence from which negligence may be inferred. Beck v. Vancouver Railway Co., 25 Or. 40 ( 34 Pac. 755 ). In this case the court say:

“To say that the mere fact of the violation of the ordinance is conclusive evidence of negligence, or is negligence per se, without regard to the conduct of the plaintiff or of the duty imposed upon him under the circumstances, would be to relieve him of the consequences of his acts when they contribute to the injury, and would result in an unjust liability upon the defendant.”

In the case last cited, which does not seem to have been very thoroughly presented, the court seems to assume that the ordinance was an ordinary by-law prohibiting excessive speed of trains and providing a penalty for its violation; but an examination of the brief of respondent indicates that it was an ordinance granting the defendant company its right of way over the street, and specifying the speed at which it should run its care thereon. No penalty by way of fine is shown, and the ordinance seems to have been merely a contract between the city and the railway company. It stands to reason that, under such circumstances, no breach of such contract could give a right of action to a third party, and the case might well have gone off on that ground, and this, perhaps may have been in the judicial mind when the opinion was written, though it seems to be placed upon the broad ground that violation of a city ordinance is merely evidence of negligence. Conceding, without deciding, that such has become the settled law in this State by reason of the decision just adverted to, we see no ground either in logic or morals for applying the same rule to a case involving the violation of a general statute of the State. It must be confessed, however, that a few states hold without qualification that a violation of a state law furnishes only evidence of negligence, or as the New York courts say, *522 “prima facie evidence of negligence.” This is notably true of New York, Delaware, and Nebraska; but the courts so holding are a small minority, and, in the opinion of the writer, furnish no logical reason for such holding. Concerning decisions holding the latter doctrine, Mr. Thompson observes:

“It is to be regretted that two or three authoritative courts have fallen into the aberration of holding that the violation of a statute, or municipal ordinance, enacted for the public safety, does not establish negligence per se, but is merely what the books term, ‘evidence of negligence’—that is to say, competent but not conclusive evidence, to be submitted to the jury on the question of negligence or no negligence. It seems to have escaped the attention of the judges who have laid down this rule that it has the effect of clothing common juries with the dispensing power—the power to set aside acts of the legislature—a power exercised by the early kings of England, though its exercise was odious to our ancestors, so much so that the exercise of it disappeared with the Tudors.”

Whatever may be the rule where the measure of care is prescribed by the by-laws of a municipal corporation, logic and reason would seem to indicate that, where the laws of the State for the protection of the public have prescribed that certain precaution shall be observed in the labeling of kerosene and distillates, such requirements constitute a legislative declaration of the minimum of care necessary under the circumstances, and that a less degree is negligence as a matter of law, and that the pleading and proof necessary in case of injury arising under such circumstances need only to show the breach of the statutory requirement, the fact that such breach was the approximate cause of the injury, and the damages sustained thereby.

3. For the reasons already stated, we think that the evidence submitted was sufficient to allow the case to be submitted to the jury, as it tended to show that defend *523 ant had shipped to the merchant Fox a tank of distillate marked “Water White oil,” that Fox had innocently delivered it as such to deceased, who, in kindling a fire with it, was killed by its explosion. In the absence of proof of contributory negligence, this was sufficient. It is urged that there is evidence showing contributory negligence on the part of deceased. First, it is said that the substance contained in the can from which it was poured was used for a purpose for which kerosene was not manufactured or sold. There was little evidence beyond that introduced by plaintiff as to what purposes kerosene oil was commonly applied, but that testimony tended to show that it was frequently used for the purpose of kindling fires, and that, if carefully used, its employment for that purpose was not hazardous. The common knowledge of the community is that its primary use is for the purpose of illumination; that secondarily it is used in oil stoves for heating purposes. It is also used for the purpose of removing grease and oils from wood or iron, and for kindling fires, as well as for many other purposes. Its use for any of these purposes is not uncommon, and we think that the employment of it for the purpose of kindling fires is not in itself negligence.

4. In Ellis v. Republic Oil Co., 133 Iowa 11 ( 110 N. W. 20 ), which was a case very similar to the one at bar, the court say:

“The use of kerosene in kindling fires is too common and too well known for us to say that a person using reasonable care may not employ that agency without being chargeable with negligence.”

The evidence was not such as to establish contributory negligence in the manner in which the oil was used. Nobody saw the accident, nor was there any odor of oil upon the fragments of the clothing of deceased. The facts are just as consistent with the theory that deceased first poured the oil on the kindling wood and afterwards *524 attempted to light it, as they are with the supposition that she attempted to pour with one hand and at the same time applied a lighted match with the other. If anything, the first supposition is the more reasonable, as it would have been the natural, safe, and convenient method of doing the act, and, in the absence of evidence, the presumption will be that deceased observed the ordinary precautions for her own safety. Ellis v. Republic Oil Co., 133 Iowa 11 ( 110 N. W. 20 ) ; McBride v. N. P. R. R. Co., 19 Or. 64 ( 23 Pac. 814 ).

As to the alleged error in instruction No. 17, given by the court, no exception appears to have been saved on the trial, and counsel for defendant, during a colloquy with the court at the close of the trial, finally accepted it as correct.

5. We do not think- the court erred in admitting the testimony of the witness, Victoria Hampton, as to certain experiments made by her to determine whether kerosene would evaporate, and to exhibit to the jury the utensils used by her in making such experiments. Such testi-. mony, it is true, should be admitted with extreme caution; but its admission or rejection is largely within the discretion of the trial court, and we cannot say that there was an abuse of such discretion in this instance. Leonard v. S. P. R. R. Co., 21 Or. 555 ( 28 Pac. 887 : 15 L. R. A. 221).

The judgment of the circuit court will be affirmed.

Affirmed.