Griffith justice 1 appellants are the distributors of

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GRIFFITH, Justice. [1] Appellants are the distributors of petroleum products, including gasoline. Shortly be- fore the injury here complained of, appellants, from their station at Canton, sold and delivered to a planter in that vicinity a drum of gasoline for use in farm tractors. Appellee was the planter's employee and was engaged in operating a tractor. The drum of gasoline had been taken to the field, but no attempt had been made to use it, until, for the first time since its delivery, appellee undertook to remove the bung-hole cap from the drum in order to replenish the fuel in the tractor, whereupon there was a sudden outburst of fire, caused, as the jury was justified in concluding upon the evidence, by a spark which was produced by the condition of unrepaired threads of the bung cap, as will be later mentioned. [2] Appellee was severely burned by the sudden fire, and recovered judgment in an action therefor, from which judgment this appeal is prosecuted. [3] The chief argument of appellants is that the proof shows that an explosion or fire in drawing gasoline from a drum when, or on account of, taking off the bung cap is an unusual, ex- traordinary, and improbable occurrence, so much so that some of the witnesses say that no such happening had ever before been heard of by them; and that, therefore, appellant cannot be held liable as for a failure to anticipate the danger of any such improbable occurrence. And appellants call attention to language used by the courts wherein the declaration is made that there is no lia- bility when the occurrence is unusual, extraordinary, and improbable. [4] This general language has lead to the occasional misunderstanding as to what may be termed the degree of probability which is meant by these expressions, as used in the law of negli- gence; and it is sometimes supposed and argued that unless such a foreseeable consequence is one which is more likely to happen than not to happen there can be no liability. [5] When the inquiry is upon an issue whether a certain alleged fact existed or happened in the past, it is not sufficient to prove only or no more than a possibility, however substantial the possibility may be, so long as it is only a possibility. There the proof must establish the fact as a probability, using that word in its ordinary and common acceptation. But when the inquiry is one of foreseeability, is as regards a thing that may happen in the future, and to which the law of neg- 207
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ligence holds a party to anticipation as a measure of duty, that inquiry is not whether the thing is to be foreseen or anticipated as one which will probably happen, according to the ordinary accep- tation of that term, but whether it is likely to happen, even though the likelihood may not be suf- ficient to amount to a comparative probability.
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