Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Douglas County;
the Hon. James N. Sherrick, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
After a jury trial in Douglas County circuit court, a $200,000 judgment was entered for plaintiff, Burleigh Davis, in an action for personal injuries against defendant, Marathon Oil Company. Verdicts were directed in favor of two other defendants, Donald Taylor and Helen Crawford, executor of the last will and testament of Victor J. Crawford, at the close of plaintiff's case. Only Marathon appealed, the Appellate Court for the Fourth District affirmed (28 Ill. App.3d 526), and we allowed defendant's petition for leave to appeal.
Plaintiff's injuries were the result of a gasoline explosion and fire on March 5, 1970, at a service station in Villa Grove, Illinois. Plaintiff claimed defendant was negligent in the manner in which it stored gasoline on the station premises. The station building consisted of two rooms: a sales area to the north and a lubrication area to the south. A standard-sized door opened on the east side of the building from the sales area to the driveway, where three gasoline pumps were located. Three underground storage tanks supplied gasoline to the pumps, each tank serving a single pump independently. Two tanks were used to store regular gasoline; the third, ethyl. The northernmost regular tank had a capacity of 550 gallons, and the other regular tank a capacity of 1,000 gallons. Fill pipes for the tanks were about two inches in diameter and extended 4 to 5 inches above the ground. All pumps, tanks, and piping were owned and installed by defendant. The service station building and the remainder of the premises, with minor exceptions not pertinent to this appeal, had been owned by the station operator, Victor Crawford, who died following the accident and the executor of whose estate was made a party defendant.
Under an independent contractor's agreement between plaintiff and defendant executed in 1958, plaintiff was to sell and deliver Marathon petroleum products from a bulk plant in Tuscola to customers in the Douglas County area, including the Crawford station. Plaintiff made deliveries of gasoline using a truck equipped with a compartmentalized tank that permitted gasoline to be pumped from the tank through faucets and a metering device into a hose. Plaintiff testified that since 1968 he used a manually operated nozzle on the end of the hose, which could be held in an open position by hand or could be locked in one of three open positions. With the nozzle locked in the most open position, the apparatus would pump 45 gallons per minute. Plaintiff also owned, and prior to 1968 had used, two nozzles equipped with a device that would automatically stop the flow of gasoline when the storage tank became full. He had removed the automatic nozzles from his hoses because they were not suitable for the fueling of heavy road construction equipment, for which he had a contract. Plaintiff last serviced that road equipment in December, 1969.
Plaintiff testified that he first serviced the Crawford station in 1955 and that for two years before the date of the explosion he had furnished it with three or four deliveries of gasoline weekly. On the morning of March 5, 1970, plaintiff received a telephone call at the bulk plant from Donald Taylor, whom he knew to be an attendant with nearly four years of service at the Crawford station. He described Taylor as a good worker but in need of "considerable supervision." Plaintiff testified that Taylor told him both tanks used to store regular gasoline were empty, and requested a delivery. Taylor, on the other hand, testified that he had measured the tanks with a calibrated stick, told plaintiff the 550 gallon tank was empty, but also told him the amount of gasoline still contained in the 1,000 gallon tank, which was not empty. Taylor could not remember the amount of gasoline he had said was in the larger tank.
Plaintiff further testified that he arrived at the Crawford station about half an hour after the telephone call with approximately 1,080 gallons of regular gasoline, distributed among four compartments in his tank truck. He did not talk with Taylor upon arriving but presumed he was there. Plaintiff testified that he began filling the 550 gallon regular tank using the manually operated nozzle. He locked it into an open position and squatted by the fill pipe. He stated that as an experienced operator, he could tell when a tank was nearly full by the sound emanating from the fill pipe. On this day, when the smaller tank was nearly full, plaintiff released the nozzle locking device and completed the operation by hand, putting 550 gallons into the empty tank, thus leaving about 525 gallons of regular gasoline in the truck.
Plaintiff then dragged his hose to the fill pipe for the 1,000 gallon tank. Testimony as to the position of that fill pipe ranged from it being 4 feet north of the doorway to the sales area, to 2 feet north and 1 foot east of the doorway. Although he carried a calibrated measuring stick on his truck, he did not measure the amount of gasoline in the larger tank. Instead, he pumped one tank truck compartment dry, changed the hose connection to another compartment, and locked the nozzle in a position that would allow the most rapid flow of gasoline. Plaintiff did not squat by the fill pipe to listen to the sound from this tank but, because of the chilly, damp weather, went into the sales area of the station, closed the door, and began a conversation with Everett Crawford, who was inside. Plaintiff testified he could not at that time hear sounds emanating from the fill pipe.
After several minutes, Crawford pointed to the gasoline pump that was connected to the tank being filled and asked, "What's that out there?" Plaintiff then saw gasoline by the pump, whirled, opened the door inward, went out and tried to grab the nozzle to shut it off. He stated that as he opened the door, gasoline began to flow from the fill pipe at a height of 12 to 15 inches, forming a pool of gasoline at its base. As soon as he touched the nozzle, the explosion and fire occurred. Plaintiff threw the nozzle and hose away from the fill pipe, extinguished the flames from his body, and moved his truck away from the building. He testified he had seen no liquid gasoline enter the building and had smelled no gasoline fumes while inside.
Everett Crawford, a brother of Victor, who assisted in the operation of the station, testified that the station contained a small floor-mounted space heater with a pilot light, which Victor had installed in the sales area 6 to 8 feet west or northwest of the doorway. He described the space heater as being in operation at the time of the explosion, but on cross-examination qualified his testimony to say that he knew it was operable but did not know whether it was burning. He did confirm, however, that the weather was windy and cold; other testimony indicated the wind was from the north or northeast.
Each side called an expert witness to attempt to explain the cause of the explosion. Charles Robley, on behalf of the plaintiff, based on the hypothesis that the space heater was operating, gave an opinion that the gasoline overflowing caused fumes or vapors that were pulled into the station when plaintiff opened the door and were ignited by the pilot light on the heater. Scott Anderson, on behalf of the defendant, also basing his testimony on the hypothesis that the space heater was operating, gave an opinion that when plaintiff approached the nozzle to shut it off, a spark passed between his body and the nozzle igniting the gasoline vapor in the area of the nozzle.
Defendant urges as reversible error the trial court's refusal to give two tendered instructions, each in the form of Illinois Pattern Jury Instruction No. 60.01 (IPI Civil No. 60.01 (2d ed. 1971)). One of the refused instructions read:
"There was in force in the State of Illinois at the time of the occurrence in question a certain regulation of the Division of Fire Prevention, Department of Law Enforcement of the State of Illinois, pertaining to tank trucks and tank wagons, which provided that:
During loading and unloading of tank trucks and tank wagons, a competent person shall be present ...