
    Mudrich, a Minor, Appellee, v. Standard Oil Co., Appellant.
    (No. 31761
    Decided February 15, 1950.)
    
      
      Messrs. Harrison, Thomas, Spangenberg $ Hull, for appellee.
    
      Messrs. McAfee, Grossman, Taplin, Hanning, Newcomer & Hadett and Mr. H. Vincent E. Mitchell, for appellant.
   Stewart, J.

Defendant insists that it is entitled to a judgment in its favor for several reasons which can be encompassed by three propositions:

1. That it owed no duty to plaintiff.

2. That plaintiff assumed the risk of the injury he received when he jumped into the gasoline fire for the purpose of putting it out.

3. That any negligence on the part of defendant was not the proximate cause of the injuries to plaintiff but that an intervening cause broke the chain of causation between the spilling of the gasoline and the burns which plaintiff received.

We shall discuss the propositions in the order in which we have named them.

Did defendant owe plaintiff any duty?

Defendant contends that plaintiff was a trespasser or at best a gratuitous licensee or social guest of the land occupier’s son; and that defendant itself, which regularly supplied the Solka general store with gasoline, was a business visitor and entitled to the same immunities from liability with respect to an open and visible condition of the land as the occnpier of the land. Defendant contends further that it is the law of this state that an occupier of land owes a trespasser or gratuitous licensee no duty except to avoid intentional harm and to warn him of hidden perils.

Paragraph one of the syllabus in Soles, Admr., v. Ohio Edison Co., 144 Ohio St., 373, 59 N. E. (2d), 138, reads as follows:

“An occupier of land, either as lessee, tenant or by sufferance, owes no duty to a trespasser or licensee upon such land except -to refrain from wanton, willful or reckless misconduct which is likely to injure him.” See, also, Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504.

Without deciding whether a business visitor enjoys the same immunity as an occupier of land, and without further deciding whether plaintiff was more than a mere licensee, it might well be argued that if plaintiff had come upon the Solka premises and been injured in playing around the truck of defendant, defendant would not have been liable for injuries which plaintiff received. However, defendant was a business visitor for the purpose of putting gasoline into the Solka tanks and not in spilling it and leaving it in pools upon the ground, and when defendant negligently did that it exceeded its function as a business visitor and became liable to any one injured as a direct and proximate result of its negligence.

It cannot be said that the occupier of the land acquiesced in the action of defendant simply because defendant’s driver notified the 16-year old son of the proprietor of the Solka store, for the reason that in that notification, by assuring the son that the gasoline would evaporate, the driver lulled any forebodings the son might have had causing him to pay no more attention to it.

We are of the opinion that the negligent spilling of gasoline upon the ground and the leaving of it in pools 'without any effort to get rid of it were beyond the scope of the business-guest activities of defendant, and that it would be liable for any damages which were the proximate result of such negligence.

The second proposition to which we direct our attention concerns the question of assumption of risk by plaintiff.

Defendant requested the court to give a special charge on this subject, which the court properly refused because the proffered charge did not contain all the elements of the doctrine of assumption of risk. Thereafter defendant made no further request for a charge on the doctrine and the court in its general charge, though it stated that defendant was interposing the defense of assumption of risk, did not further define it. No special exception was taken by defendant to the court’s omission of a charge on assumption of risk.

The court in its general charge fully and correctly defined contributory negligence, particularly as it relates to children, and told the jury, in substance, that if plaintiff was guilty of negligence which proximately contributed to his injury he could not recover.

There is a difference between assumption of risk and contributory negligence. If one has full knowledge of an open and visible condition, appreciates the dangers incident thereto and voluntarily acts with reference thereto, he assumes the risk of the attendant dangers. Contributory negligence, on the other hand, is the failure to exercise the degree of care with reference to a situation which an ordinarily prudent person, under the same or similar circumstances, would have exercised.

The Court of Appeals in the instant case held “that when the seven-and-one-half-year-old child jumped into the fire for the purpose of extinguishing it he did not accept a danger which he clearly understood and that he did not have a foresight of the consequences of his act and a readiness to accept them.”

There is much persuasive force in the holding of the Court of Appeals, but, in any event, since the jury held that this particular plaintiff, less than eight years of age, was not guilty of contributory negligence it is difficult to perceive how, under any correct charge, it could have found that such plaintiff assumed the risk.

The omission in the charge of assumption of risk was not called to the attention of the court nor excepted to by defendant further than the proffer of an incorrect charge before argument. It could not reasonably be claimed that plaintiff assumed the risk with an appreciation of the dangers of it as a matter of law, and since defendant did not further bring up the question after the refusal to give its incorrect proffered charge, we do not see how any claimed error upon this question can be prejudicial.

The third proposition to which we direct our attention is the most troublesome of all. Were the negligent acts of defendant the proximate cause of the injury suffered by plaintiff?

It is strenuously argued by defendant that its causing the gasoline to be spilled and to remain in pools would have produced no injury to plaintiff or any one else except for the intervening act of Jimmy Solka in setting fire to the pools and of plaintiff in jumping into a burning pool for the purpose of extinguishing it, and that these intervening acts broke the chain of causation between the acts of defendant and the injury to plaintiff.

Although it is true that if the causal connection between an act of negligence and an injury has been broken by an intervening cause which was not reasonably foreseeable by the one guilty of the negligence, the injury is not the proximate result of the negligence, nevertheless, as is stated in the first paragraph of the syllabus in Mouse v. Central Savings & Trust Co., 120 Ohio St., 599, 167 N. E., 868, “the mere fact that the intervention of a responsible human being can be traced between the defendant’s alleged wrongful act and the injury complained of does not absolve him upon the ground of lack of proximate cause if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant. ’ ’

On page 605 et seq., in the Mouse case, Judge Allen quoted with approval from 22 Buling Case Law, 132, as follow's:

“ ‘It is universally agreed that the mere fact that the intervention of a responsible human being can be traced between the defendant’s wrongful act and the injury complained of will not absolve him. On the contrary the general rule is that whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary course of events, though such consequences are immediately and directly brought about by an intervening cause, if such intervening cause was set in motion by the original wrongdoer, or was in reality only a condition on or through which the negligent act operated to produce the injurious results. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. The question always is: Was there any unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.’ ”

Whether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence. If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence. It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in an injury to someone. Neff Lumber Co. v. First National Bank of St. Clairsville, Admr., 122 Ohio St., 302, 309, 171 N. E., 327.

Defendant proffered special charges with reference to intervening causes and their foreseeability by defendant, but the giving of them was properly refused by the court for the reason that they contemplated that the very acts of Jimmy Solka and plaintiff must have been reasonably foreseen by defendant before plaintiff can recover. The test was not whether defendant should have reasonably foreseen the injury in the precise form in which it resulted, or should have anticipated the particular acts which flowed from the creation of the gasoline pools and the failure to remove them, but whether in the light of all the circumstances an injury was likely to result to someone.

Was it a question of fact whether the conduct of Jimmy Solka and plaintiff was reasonably foreseeable? Surely it could be argued that if they had been .older children or adults no one could reasonably have foreseen that they would set afire pools of gasoline or make ill-chosen efforts to extinguish the fire by jumping into it. But these were boys less than 8 years of age.. It is a matter of common knowledge that matches, the lighting of fires and fire itself are almost irresistible to young children, and we cannot say as a matter of law that it cannot reasonably be foreseen that, if gasoline is carelessly left in pools on premises where children congregate and play, these pools will be set afire and in attempting to extinguish the fire a child or children will be burned. Whether such consequences were reasonably foreseeable presented a question upon which reasonable minds might differ and, therefore, under proper instructions as to proximate cause, which were given in the instant case by the trial court, the question of foreseeability was one for the jury.

The instant case was certified to this court because of its supposed conflict with the holding in the Rossiaki case, supra.

In the Rossiaki case, West Side Motors, Inc., left an abandoned car on a vacant lot owned by The Almira Company. There was gasoline in the car's tank but no cap on it. Rossiaki was seen on the day of the accident near the tank and was also seen lighting a match. Simultaneous with the lighting of the match there was an explosion and Rossiaki was burned. The trial court directed a verdict in favor of both the owner of the real estate and West Side Motors, Inc.

Without passing upon the correctness of the judgment in the Rossiaki case, which is not before us, we call attention to the difference in the factual situation between it and the instant case.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Weygandt, C. J., Matthias, Zimmerman and Turner, JJ., concur.

Hart and Taft, JJ., dissent.

Hart, J.,

dissenting. It seems to me that the finding and judgment in this case, as reflected by the majority opinion, are not in harmony with certain legal principles heretofore approved and followed with fair consistency by this court in other cases.

As I view it, this situation results from a failure of the court in this case to determine whether the defendant’s liability or immunity from liability was the same as that of a,n occupier of land and whether plain.tiff was a trespasser, licensee, or invitee on the Solka premises.

This court has heretofore consistently held that an occupier of land owes to a trespasser or a licensee, even though he be an infant, only the duty to refrain from wilfully or wantonly injuring him and to warn him of any hidden traps or pitfalls which he may encounter on the premises. 29 Ohio Jurisprudence, 441, 446, Sections 46, 50; Pittsburgh, Ft. W. & C. Ry. Co. v. Bingham, Admx., 29 Ohio St., 364, 23 Am. Rep., 751; Wheeling & Lake Erie Rd. Co. v. Harvey, 77 Ohio St., 235, 83 N. E., 66,122 Am. St. Rep., 503, 19 L. R. A. (N. S.), 1136; Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504; Sharp Realty Co. v. Forsha, Jr., a Minor, 122 Ohio St., 368, 171 N. E., 598; Soles, Admr., v. Ohio Edison Co., 144 Ohio St., 373, 59 N. E. (2d), 138.

1 am of the opinion that the defendant was a business visitor and, therefore, an invitee on the Solka premises. It stood, as to third persons who came upon the same premises, in the shoes of the occupier of the land and was entitled to the benefit of immunities from liability which an occupier of lands enjoys as against trespassers and licensees. The duty of a business visitor toward a trespasser or a licensee on the premises is to abstain from wilfully or wantonly injurying him. Although there are cases to the contrary, the prevailing rule seems to be that one, who, though not a permanent occupier of premises, is in the lawful exercise of a right upon the premises superior to that of a trespasser or licensee, has the same immunity from liability as the owner or occupier. 45 Corpus Juris, 787, Section 191.

2 Restatement of Torts, 1022, Section 383, states the rule as follows:

“One who does an act or carries on an activity upon land on behalf of the possessor thereof, is subject to the same liability, and enjoys the same immunity from liability, for bodily harm caused thereby to others within and outside the land as though he were the possessor of the land.”

This rule was recently recognized and applied by this court as the basis for its decision in Soles, Admr., v. Ohio Edison Co., supra, as the syllabus and opinion in that case clearly indicate.

In the case of Friedman v. Snare & Triest Co., 71 N. J. Law, 605, 61 A., 401, 108 Am. St. Rep., 764, 70 L. R. A., 147, the sole defendant was a construction corporation engaged in building operations for the owners and occupants of the premises. It was held that the defendant whose employees were charged with improperly placing and piling iron girders on the sidewalk of the street adjacent to the building stood as an agent of, and had the same right as, the owners and occupants of the premises.

In the case of Blackstone v. Chelmsford Fdy. Co., 170 Mass., 321, 49 N. E., 635, both a contractor, engaged in constructing iron corridors and an iron stairway in a hospital building, and his subcontractors were held entitled to the benefit of the rule, where a licensee —a fireman in the hospital’s employ — was injured in passing over a portion of the stairway which was not complete. The court stated that the duty which defendants owed to licensees was not to provide a safe and convenient place for travel, but to refrain from doing them any wilful injury and from setting traps for them.

In the case of McIntyre v. Converse, 238 Mass., 592, 131 N. E., 198, where a boy was injured while watching a contractor unload and drive on another’s premises piles for oil tank foundations, and where there was no inference of unlawfulness or wantonness on the part of the defendant, the court said:

“As he [plaintiff] was a trespasser, or at best a mere licensee, the only duty which the defendants owed him was to abstain from any wilful, wanton or reckless conduct that was likely to injure him. Proof of negligence, or even gross negligence, on the part of the defendants’ employees would not entitle him. to recover in this action.”

In the case of Downes v. Elmira Bridge Co., 58 N. Y. Supp., 628, a contractor, engaged in placing heavy building material on another’s land where a float bridge was being constructed, was held to be under no duty to take affirmative steps to guard from danger persons who trespassed on the premises or were there by sufferance; and such a person — a man taking an alternate route across the lot — was held to have only the right to be protected from wanton and wilful injury. Upon a later appeal (81 N. Y. Supp., 834), the judgment was affirmed, and, in affirming the latter judgment, the Court of Appeals (179 N. Y., 136, 71 N. E., 743) pointed out the absence of any wilful or wanton injury and stated that the defendant was clothed with the landowner’s rights, and that the plaintiff was using the premises by sufferance.

The rule stated in the above-cited cases was likewise applied in the following cases: Soles, Admr., v. Ohio Edison Co., supra; Robbins, Admr., v. Athol Gas & Electric Co., 236 Mass., 387, 128 N. E., 417; Hafey, Admr., v. Turners Falls Power & Electric Co., 240 Mass., 155, 133 N. E., 107; Sohn v. Katz, 112 N. J. Law, 106, 169 A., 838; Waller v. Smith, 116 Wash., 645, 200 P., 95; Davis, Admr., v. Malvern L. & P. Co., 186 Iowa, 884, 173 N. W., 262; Grube v. Mayor of Baltimore, 132 Md., 355, 103 A., 948, L. R. A. 1918 E, 1036.

Cases to the contrary are Fitzpatrick v. Penfield, 267 Pa., 564, 109 A., 653; Irwin Savings & Trust Co. v. Penn. Rd. Co., 349 Pa., 278, 37 A. (2d), 432; Reichvalder v. Borough of Taylor, 322 Pa., 72, 185 A., 270.

The majority opinion in the instant case says: “However, defendant was a business visitor for the purpose of putting gasoline into the Solka tanks and not in spilling it and leaving it in pools upon the ground, and when defendant negligently did that it exceeded its function as a business visitor and became liable to anyone injured as a direct and proximate result of its negligence.” No authority is cited for that statement and I am unable to concur in it. Defendant was invited on the Solka premises for the purpose of putting gasoline into the Solka tanks. The negligence of the defendant’s servant took place in the performance of what he had been invited on the premises to do, not in the performance of some other act which he might have been permitted to do or for the doing of which he had been given no permission. It is not claimed that defendant intentionally spilled the gasoline.

In effect, the foregoing statement from the majority opinion recognizes the rule that the business invitee “is subject to the same liability, and enjoys the same immunity from liability * * * as though he were the possessor of the land,” but proclaims that the rule can never apply in a negligence case. This statement ignores the fact that this court did apply the rule in a negligence case, to wit, Soles, Admr., v. Ohio Edison Co., supra.

2 Restatement of Torts, 897, Section 332, defines a business visitor as follows:

“A business visitor is a person who is invited or permitted to enter or remain on land in the possession-of another for a purpose directly or indirectly connected with business dealings between them.”

In my opinion, the defendant was on the Solka premises as an invitee, an invitee being one on the premises occupied by another at the latter’s express invitation or upon invitation actual or constructive for a purpose which concerns the occupier of the land. Soles, Admr., v. Ohio Edison Co., supra.

Mere negligence, as distinguished from wilful and wanton misconduct, does not forfeit the immunity of an invitee of the occupier of the premises as is clearly shown by the authorities hereinbefore cited. In fact» where a business visitor has completed his business-visit and has left the premises, he is no longer liable-to the land occupier or to persons coming upon the-land with the consent of the land occupier for conditions which are visible or known to the land occupier or such visitors. Liability follows such business visit- or only when his visit has made the premises dangerous in a manner unlikely to be discovered by the land occupier or other persons lawfully upon the land. Burdick v. Cheadle, 26 Ohio St., 393, 20 Am. Rep., 767; 2 Restatement of Torts, 1030, Section 385, and comment. This rule i¡3 particularly applicable to .repairmen, contractors and their employees, and merchant deliverymen who go upon the premises of another for a special purpose for a limited period of time.

In the instant case, the driver of defendant’s gasoline truck, after the gasoline had been spilled on the ground and before he left the premises, brought the son of the absent land occupier, who, although then but 16 years of age, was in charge of the premises and handled the invoice and paid for the gasoline, to the place of the gasoline spillage and pointed out to him the condition of the premises at that time. At least there were no invisible or hidden dangers left on the premises by the defendant’s servant at the time he departed and at the time of the injury to the plaintiff. The occupier of the land was in sole charge and control thereof.

On the other hand, in my opinion, the plaintiff, Theodore Mudrich, was a licensee on the Solka premises. In 29 Ohio Jurisprudence, 445, Section 49, a licensee is defined as follows: “A person who goes upon the lands of another by permission and acquiescence, for his own pleasure or convenience, and not by invitation, is classed as a licensee.”

This rule was expressly approved by this court in the case of Hannan, Admr., v. Ehrlich, supra. And the rule of liability as to a licensee is that he takes his license subject to all the perils and risks, and the licensor owes him no duty except to refrain from wilfully or wantonly injuring him and to exercise ordinary care toward him after discovering him to be in peril. See, also, 58 Yale Law Journal, 1272.

I appreciate the fact that it is now generally held that in cases involving injury resulting from active conduct, as distinguished from condition of the premises, the occupier of the land may be liable for failure to exercise ordinary care toward a licensee whose presence on the land is known or should reasonably be known by the land occupier. See 2 Restatement of Torts, 929, Section 341; Prosser on Torts, 630, Section 78; Ottinger v. Stewart, 24 Cal. (2d), 133, 148 P. (2d), 19, 156 A. L. R., 1221, 1224. For instance, if children of tender age are present where certain activities are being carried on, the person responsible for such activities must take care not to injure them (Ziehm v. Vale, 98 Ohio St., 306, 120 N. E., 702, 1 A. L. R., 1381; Coy, an Infant, v. Columbus, Delaware & Marion Electric Co., 125 Ohio St., 283, 181 N. E., 131); the law permits recovery under certain circumstances by children injured in public places (DeGroodt, Exrx., v. Skrbina, Admr., 111 Ohio St., 108, 144 N. E., 601, 38 A. L. R., 591; Gottesman, Admr., v. City of Cleveland, 142 Ohio St., 410, 52 N. E. [2d], 644); and a different amount of care is required in cases where dangerous conditions are known to the occupier of the premises to which children are accustomed to resort (Harriman v. Pittsburgh, C. & St. L. Ry. Co., 45 Ohio St., 11, 12 N. E., 451, 4 Am. St. Rep., 507). But in the instant case, the alleged negligence of the defendant related to the condition of the premises, not to any activities being carried on by the land occupier or the defendant as a business visitor.

I am of the opinion also that the defendant could not be charged with such foreseeability of the setting fire to the gasoline and the jumping into it by the plaintiff as to make out a case of negligent conduct on its part. To render the defendant liable, it must have been reasonably foreseen that someone would come upon the Solka premises, procure matches and set fire to the gasoline, and that some person would then voluntarily jump into the fire and thus receive injury. Even if it should have been within the reasonable anticipation of the defendant that someone would set the gasoline on fire, it seems to me that it is beyond the reasonable imagination of anyone that someone would voluntarily jump into the blaze of burning gasoline. It seems to me that negligence cannot be predicated upon such a remote possibility. See Dahl v. Valley Dredging Co., 125 Minn., 90, 145 N. W., 796; Moody v. Gulf Refining Co., 142 Tenn., 280, 218 S. W., 817, 8 A. L. R., 1243.

I am also of the opinion ■ that the spilling of the gasoline was not the proximate cause of plaintiff’s injuries. In my view, the chain of causation between the spilling of the gasoline upon the ground and the injury to the plaintiff was completely broken. The setting fire to the gasoline by Jimmy Solka was an independent act but for which the injury would not have been suffered by the plaintiff (Globe & Rutgers Fire Ins. Co. of N. Y. v. Standard Oil Co. of La., 158 La., 763, 104 So., 707, a case similar in facts to the instant case).

In the Moody case, cited above, where boys, knowing the inflammable nature of gasoline, in the short absence of defendant’s employee who did not know that they had matches, threw lighted matches into pools of gasoline on the ground, occasioned by unloading a tank car, and thereby a fire was started, burning plaintiffs’ buildings, the Supreme Court of Tennessee held that the act of the boys was an independent, intervening cause, for which defendant was not liable, conceding its negligence in permitting the gasoline to escape.

Clearly, the plaintiff’s rash act of jumping into the blazing gasoline was a complete independent act but for which he would have received no injury. Even if the defendant had negligently spilled the gasoline and had negligently set fire to it to remove it from the premises, and someone had jumped into the blazing fire and received injuries, the proximate cause of such injury would be the voluntary act of jumping into the blazing gasoline. The plaintiff could have stood about this fire indefinitely without injury. The gasoline and fire would have remained harmless to him as it did to his friend Jimmy Solka. It was only when plaintiff committed the rash act of voluntarily jumping into the fire that injury came to him. In other words, negligence in starting a fire does not establish liability for injury to one who attempts to put it out. 45 Corpus Juris, 794, Section 200; Lunt v. Post Printing & Publishing Co., 48 Colo., 316, 110 P., 203, 30 L. R. A. (N. S.), 60.

The majority opinion quotes with approval certain statements of law to the effect that an intervening cause will not break the chain of causation between a negligent act and an injury if the intervening cause was set in motion by the defendant, or if the intervening cause was in reality only a condition on or through which such negligent act operated. Here, neither of the two intervening causes was set in motion by the defendant and neither was a condition on or through which defendant’s negligent act operated. On the contrary, the result of defendant’s negligence was merely a condition on or through which both of the two independent intervening causes operated, aud had to operate, to cause plaintiff’s injury.

The record of the instant case was certified to this court by the judges of the Court of Appeals on the ground that its judgment was in conflict with that in the case of Rossiaki v. West Side Motors, Inc., 19 Ohio Law Abs., 191, decided by the Court of Appeals of the Second Appellate District. In that case, West Side Motors, Inc., left an old abandoned car on a vacant lot owned by another.. There was some gasoline in the uncapped tank of the car. Plaintiff was seen on the day of the accident in proximity to the tank of the automobile and was seen to light a match. Simultaneously, with the lighting of the match, the tank exploded and plaintiff was severely burned. Suit was brought against both the landowner and the motor company, which had used the land for the storage of its automobiles. At the close of plaintiff’s case the trial court directed a verdict in favor of both defendants. The judgment was affirmed by the Court of Appeals.

In my opinion, a case more nearly in conflict with the instant one is Case, Admr., v. Miami Chevrolet Co., 38 Ohio App., 41, 175 N. E., 224, decided by the Court of Appeals of the First Appellate District. In that ease, a minor 13 years of age went upon a vacant lot where the defendant had stored old dilapidated automobiles and threw a lighted match into the tank of one of the automobiles causing an explosion and fire which caused the child’s death. The petition alleged that children had been accustomed to playing on the lot where the automobiles were stored. The trial court sustained a demurrer to the petition and rendered judgment for the defendant. The Court of Appeals affirmed the judgment on the ground that the facts alleged in the petition showed no violation of a duty by the defendant to the decedent and that as a matter of law the alleged negligence of the defendant in leaving the gasoline in an uncapped tank was not the proximate cause of decedent’s death.

In my opinion, the view taken by the Courts of Appeals of the First and Second Appellate Districts in the two cases just noted is the correct one, and the judgment of the Court of Appeals in the instant case is not in accord with established legal principles heretofore prevailing in this state.

Tart, J., concurs in the foregoing dissenting opinion.  