#### Pinter, Appellant, vs. Wenzel, Respondent.

*November 19*

December *14, 1920.*

*Negligence": 'Filling gasoline' tank at supply station: Explosion: Burden of proof.*...

1. In an action- for injuries to the rider of a motorcycle when gasoline rah over the edge-of the tank onto-the hot radiators and .exploded ..while the tank was being filled, evidence which : did not show whether the gasoline was spilled‘over the edge or flowed over it from an expulsion from the container in the process of filling, in connection with the uncontradicted *85testimony of an employee of the defendant that the quantity of gasoline ordered by plaintiff had not been supplied when the explosion occurred, is *held*to leave the cause of the explosion to mere speculation and conjecture, and a nonsuit was properly granted.

2. Actionable negligence must be affirmatively shown, and the plaintiff has the burden of showing with reasonable certainty how the accident happened.

Appeal from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge.

*Affirmed.*

This action was brought for damages for personal injuries sustained by the plaintiff, which injuries plaintiff alleges were due to negligence of the defendant. At the close of the testimony the court gránted a nonsuit and awarded judgment dismissing the complaint.' This is aii appeal from such judgment.

For the appellant there was a brief by *Walter F. Mayer,*attorney, and *Vincent D. Hennessey,*of counsel, both of Milwaukee; and the cause was argued orally by *Mr. Mayer.*

For the respondent the cause was submitted on the brief of *Ray J. Cannon.*

Siebecker, C. J.

On May 18, 1919, the plaintiff, who was riding a motorcycle, requested an employee of defendant to supply his motorcycle with- one gallon of gásolihe from a gasoline filling station operated by defendant at a pleasure park owned by him. • The-plaintiff remained-seated bn the motorcycle and undertook to hold the hose' and adjust the nozzle to guide the flow of the gasoline into .the container while the-employed of-defendant turned-the- crank of the filling-station tank-.- The gasoline overflowed--the-gasoline container of plaintiff’s-motorcycle'-and pou'red-over the motor, an’explosion occurred,' and pláintiff süstáined the injuries complained of. Defendant claims that pláintiff ordered his: employee to-put‘one gallon, of gasoline-in-the contáiñér of the motorcycle; that threé complete turns of the crank of' the filling pump- are necessary to supply one *86gallon of gasoline from the filling-station tank; that the operator had turned the crank but two times and a fraction when the gasoline flowed onto the motor and the explosion occurred. The trial court held that the evidence failed to establish actionable negligence on defendant’s part. The nonsuit was evidently granted upon the ground that the evidence in its nature will not permit of an inference that the employee of defendant furnished more than one gallon of gasoline as called for by plaintiff. The evidence of defendant’s employee who operated the gasoline pump is positive that less than one gallon had been pumped when the explosion occurred. There is no testimony ■ to contradict this '.unless.it.be negatived by the fact that the overflow of gasoline onto.the hot parts of the.motorcycle resulted from overfilling the one-gallon container of the motorcycle. The overflow of gasoline onto the hot parts of the motorcycle seems undisputed. It is to be borne in mind that this overflow may have been caused by a slight spill or spray of gasoline as it passed from the hose nozzle into the motorcycle container, or by having the gasoline spill onto the outside of the container, due to a sudden expulsion or puffing out from the opening of the container in the process of filling. ' These different ways' of causing the gasoline to flow outside of containers are known to occur in the process of delivering gasoline to motor vehicles by the means' and in the manner described by the witness in this- case. The testimony ■furnishes no.certain and reliable basis for an inference showing what caused the gasoline to flow outside the container -and: thus come in contact with' the hot parts of the motorcycle. This fact remains an uncertainty and a 'speculation and rests on-mere conjecture. *Hyer v.*Janesville, 101 Wis. 371, *77*N. W. *729; Schell v C. & N. W. R.*Co. 134 Wis. 142, 113 N. W. 657.

Actionable negligence must be affirmatively.-shown. The burden rested on the-plaintiff to show with reasonable certainty;-how the"explosion was1-caused. .We are persuaded *87that the evidence fails to show this fact and that the nonsuit was properly granted. - .

*By the Court.*— The judgment is affirmed. ■