Titlow v. Florence Trading Co.

WORKS, J., pro tem.

These two actions were consolidated and tried together before a jury. The respondent Charles Titlow was the occupant and the respondent Stella K. Bell was the owner of a certain dwelling-house which was destroyed by fire, the action having been commenced to recover damages from the Florence Trading Company for the negligence of one of its servants, which negligence is alleged to have been the proximate cause of the loss which respondents Titlow and Mrs. Bell suffered. Judgments were rem dered in favor of the respondents, and it is from these judg

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■ments and from orders denying motions for new trials that the Trading Company appeals.

• The appellant contends that the evidence fails to show that the negligence charged against it, granting that snch negligence existed, was- the proximate cause of the fire, and that, accordingly, the verdict is without the support of evidence in that particular.

The jury was justified in finding the following facts to exist: The Trading Company was, during the period of interest to us now, in the mercantile business and sold gasoline and kerosene, which it delivered to its customers, one of whom was Titlow. Two cans were kept on the premises of Titlow, a round red can for the reception of gasoline and a square white can for the reception of kerosene, and the deliveryman of the Trading Company, knowing the use to which the cans were respectively put, had filled them on at least one or two occasions before the one which now concerns us. However, at that time—the time now in question—he reversed the process, placing kerosene in the round can and gasoline in the square can, filling them both full. Titlow’s wife then, not knowing of the deliveryman’s mistake, filled a kerosene lamp from the gasoline content of the square can, supposing she was getting the kerosene which it was her custom to draw Erom that receptacle. Some time after filling the lamp, Mrs. Titlow lighted it, although it was in the afternoon, for the purpose of heating her curling-iron. She was alone at the time. She says the lamp “exploded but I can’t tell what happened. It didn’t act right but I don’t know what it did. I can’t tell whether the flame shot up, or flickered, or what. I can’t tell anything about whether it made a noise or not. I don’t remember anything that happened. I grabbed the curtain and put it in front of me. I did not get any oil on me. I don’t know where the lamp was.” Later she testified that the lamp did “flicker, or spurted, I can’t explain just what it was. I know it acted very peculiar.” As soon as the lamp ‘ ‘ exploded, ’ ’ to quote Mrs. Titlow, she ran to the front of the house and called Mrs. Strause, a neighbor who lived near at hand. Mrs. Strause hurried to the Titlow residence and, according to her, “went into the bedroom and picked up a rug and went into the bedroom and saw the lamp lit there and picked it up and ran out-of doors with it. It was ablaze.” This was on direct examination. On cross-