DISSENTING OPINION. After a careful study and consideration of all the testimony in this case, I am of the opinion that the evidence for the defendants, if believed by the jury, would conclusively establish their contention that they placed only kerosene in the storage tank kept for that purpose at the Bailey Service Station. On the other hand, the testimony of the plaintiffs, and of Doc Jones, the negro attendant at the filling station, and that of Mr. Bailey, a witness for the plaintiffs, shows without dispute that the can of petroleum products delivered by Doc Jones into the plaintiff's car came out of the said kerosene storage tank at the filling station; and it is further shown by the testimony of the plaintiffs that this same can, so filled with petroleum products, was carried from the car and placed in an old kitchen or "junk room" at the Henley home about fifteen or twenty minutes before the twelve-year-old son and his little sister went to that room to get the *Page 832 can to fill the lamp. And it is undisputed that the liquid with which they undertook to fill the lamp was gasoline; and according to the testimony of the plaintiffs, no other can containing gasoline was kept in that room or elsewhere in the house.
I am, therefore, of the opinion that since the testimony of all the witnesses who were present at the filling station fully exonerated the negro attendant of having made a mistake, so as to place the wrong can in Mr. Henley's car, the clear-cut issue was presented for the decision of the jury as to whether or not the members of the Henley household, including the grandfather, who says that he found it necessary to go to his own home immediately after the accident, and get some kerosene for the lamps that night, before some more could be purchased the next day after the funeral, were telling the truth, or whether the testimony on behalf of the defendants was true.
To assume that all of the witnesses were endeavoring to tell the truth the whole case would be left clouded in mystery. I think, therefore, that the judgment for damages appealed from should either be affirmed, or that we should hold that the defendants were entitled to a peremptory instruction. If the theory of the controlling opinion be correct, then in my opinion a peremptory instruction should have been granted. But I think that the case was properly submitted to the jury, and that its decision on the sharply disputed issues of fact should not be disturbed. The CHIEF JUSTICE concurs in this view of the case. *Page 833