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Baggett v. Ashland Oil & Refining Co.

MARCH 4, 1968.

BENNETTA SUE BAGGETT, PLAINTIFF-APPELLEE,

v.

ASHLAND OIL & REFINING COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 4, 1968.

This is an appeal by defendant, Ashland Oil Company, from a judgment entered upon the verdict of a jury in favor of plaintiff, Bennetta Sue Baggett, in the sum of $140,000 for injuries alleged to have been sustained by her as a direct and proximate result of the negligence of the defendant in its ownership, maintenance and control of an oil well pump.

The oil pump in question was located about seventy-five feet from the rear of the Baggett residence on premises owned by plaintiff's father. There was a gate valve or faucet attached to the pump which could be easily turned, and from which would run crude oil. There was no fence or signs on the well or pump, warning third persons or prohibiting them from turning the faucet to obtain the oil. There was no gate or lock on the valve of the pump. The pump was tended to each day by defendant's pumper; he would see that the motor was in good working order and test it, turning on the valve to see the pressure. On many occasions children would play on the pump itself using it as a kind of teeter-totter, and they would also turn on the valve and allow crude oil to run out of it; it was uncontradicted that these occurrences often took place in the presence of the pumper, but he did nothing about it. There was testimony to the effect that at a time, six months before the incident in which the plaintiff was injured, plaintiff's father had a conversation with a man driving a pickup truck with Ashland Oil Company written on the side of it, at which time plaintiff's father asked the man if he would erect a fence around the pump to protect the children. The man in the truck said he would see about it.

The occurrence out of which this lawsuit arises took place between 4:00 and 5:00 p.m. on September 23, 1958, in Rumsey, Kentucky, an oil-producing area. At this time, plaintiff was thirteen years of age and resided on a farm with her parents and seven brothers and sisters, ranging in age from three to seventeen years. In the one-mile area around the pump there were about fifty children. The plaintiff's mother, Mary Elizabeth Roy (who had remarried since the death of her husband in 1962), testified that on the day in question she had lit a fire in the stove shortly before 3:15 p.m., at which time Bennetta Sue would return home from school. She further testified that she used crude oil from the well, on occasion, for the purpose of starting fires in the stove, but that this oil was not obtained directly from the pump; rather, it was taken from a large can that had been allowed to sit on the top of the brooder house overnight. When Mrs. Roy left the house to water the hogs, between 4:00 and 5:00 p.m., she encountered the plaintiff entering the house carrying a bucket of milk. The plaintiff's mother testified that at this time a fire was visible in the stove. Later, Mrs. Roy heard an explosion, raced back to the house, and found that her daughter had already been taken to the hospital. She stated that Bennetta Sue had never witnessed her starting a fire with the oil from the large can.

The plaintiff testified that on the day of the occurrence she returned home from school and went to milk the cows. She brought the milk in the house and started to prepare some potatoes for cooking. She then looked in the stove to see if there was a fire burning, and seeing none, went out to the defendant's pump to get some oil. She turned the faucet on the pump and filled an eight- to ten-ounce can about two-thirds full. She further testified that she then returned to the house and stirred the ashes in the stove to see if there were any "live ones." Concluding that the fire was completely out, she poured the crude oil into the stove, and there was an explosion. Plaintiff's dress caught on fire and she was severely burned.

On appeal, the defendant contends:

(1) That the trial court erred in denying its motion for a directed verdict and its motion for judgment notwithstanding the verdict because;

a. No act or omission of defendant was the proximate cause of plaintiff's injuries, and

b. No competent evidence was introduced at trial showing that defendant was guilty of any negligence or misconduct.

The defendant claims that in any event a new trial should be granted because of the following errors:

(1) The court erred in allowing plaintiff's brother, an ironworker, to give expert testimony regarding the mechanical operations of oil well pumps and the chemical composition of crude oil, without having been qualified as an expert in those fields;

(2) In admitting photographs of other oil wells which had not been seen by any witness;

(3) In allowing testimony that children had played upon defendant's oil well pump when this was an irrelevant issue considering the fact that the act causing ...


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