dissenting: The conduct of the plaintiff, in view of the physical facts which are not in dispute, establishes contributory negligence as a matter of law.
The gasoline tank was being filled on a hot dry day and was located only fifteen feet, a mere five paces, almost directly south of a sample stove which was burning, with a wind of five miles per hour from the south. The sample stove was plainly visible. Furthermore, the plaintiff in backing the fuel truck into position backed over a hose leading from a large butane tank located southeast of the sample stove. This hose was in plain view. In addition the *446truck motor was running, and had been running for some time on this particular hot day in arriving at the location. As the tank was being filled the truck was located on a line almost as directly downwind from the gasoline tank as was the sample stove.
Now to say that an experienced man, who had for years delivered petroleum products to oil rigs in the field, could possibly be free from negligence in positioning his truck in this manner to fill a gasoline tank under these circumstances, particularly where the motor of the fuel truck is running, and without specifically checking for a flame in the sample stove, to me is untenable.
Speculation whether the explosion may have been caused by ignition from the exhaust of the truck or from the flame in the sample stove is immaterial.
I therefore respectfully submit the trial court should be affirmed.