Waters-Pierce Oil Co. v. Snell

• Decision Date: 06 November 1907
• Court: Texas Court of Appeals
• Parties: WATERS-PIERCE OIL CO. v. SNELL.<SMALL><SUP>*</SUP></SMALL>

106 S.W. 170

WATERS-PIERCE OIL CO. v. SNELL.^*

Court of Civil Appeals of Texas.

November 6, 1907.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Personal injury action by Thomas M. Snell, by next friend, against the Waters-Pierce Oil Company and others. From a judgment for plaintiff against defendant company, the company appeals. Affirmed.

Taliaferro & Wilson and Andrews, Ball & Streetman, for appellant. Lovejoy & Parker, for appellee.

FLY, J.

Appellee, a minor, through his father as next friend, sued appellant, Louis S. Fries, and Robert E. Armstrong for damages alleged to have accrued by reason of injuries inflicted on his person through an explosion of gas caused by the negligence of appellant. It was alleged that appellant owned and operated an extensive warehouse in the city of Houston, Tex., where it sold and distributed oil, gasoline, and other substances of like character, all being highly inflammable, and that in said warehouse was located a cooperage shop, in which appellant operated a furnace, which was about four feet square. After enumerating the injuries inflicted upon appellant, the petition proceeds: "Plaintiff alleges that his injuries, as aforesaid, were the direct and proximate result of the joint and concurrent negligence of the defendants, and each of them, in that they and each of them negligently and carelessly caused, permitted, and directed to be constructed and maintained in dangerous and hazardous proximity tanks containing gasolines and other oils of highly inflammable character, as aforesaid, to the cooperage shop, with its open furnace, constructed, as aforesaid, and in that they negligently and carelessly permitted and directed gasolines to be drawn from one of said tanks, as aforesaid, located in dangerous proximity to said open furnace, and caused and permitted said gasolines to be transferred by its servants to other cans and put into other cans; that it was negligence and carelessness on the part of the defendants, and each of them, and their servants, to permit a fire to burn in said furnace while gasolines were being drawn from said tanks; that they negligently and carelessly caused and permitted cans of gasoline to stand in the cooperage shop near said open furnace, and that fumes, vapors, and gases arose from the tanks and cans from which the gasoline was being drawn and to which it was being transferred, and in which it was standing in the cooperage shop; that said fumes, vapors, and gases ran towards said fire, or came in contact therewith, and, as a result thereof, ignited or exploded and caught fire, as a result of which the plaintiff was burned, as aforesaid." Appellant and its codefendants answered by general demurrer, general denial, and specially pleaded assumed risk and contributory negligence. The cause was tried by jury, and resulted in a verdict and judgment in favor of Fries and Armstrong, but against appellant for the sum of $30,000.

It appears from the transcript of the evidence that appellee, a boy 18 years of age, at the time of the accident was permanently injured by wounds inflicted on him by the explosion and ignition of gas in the warehouse of appellant in the city of Houston, that said explosion and ignition took place through the negligence of appellant in having an open fire in a furnace in such proximity to where oil and gasoline were being drawn as to ignite the gases which arose from the oil and gasoline. Appellant was charged with the knowledge that such gases would be generated, and that they would fill the tank room and cooperage room, and that they were highly inflammable, and would probably be exploded and ignited by the open fire. At the time the explosion occurred appellee was sitting in an alleyway adjoining the cooperage room, on an empty can. There was first an explosion in the furnace, followed by a flash of flame which came out of the cooperage room, and enveloped appellee, and burned him about the face, neck, chest, arms, and hands; the skin of those parts of his person being burned into a crisp condition, and his finger nails being burned until they turned back, and his whole hands were burned and up to the elbows. His mouth was so swollen from the burns that he had to be fed liquid food through a glass tube pressed between his lips for about two months, and in places on his face the burns extended down into the muscles. Appellee's physician thus describes the condition of his patient and his treatment: "I visited him about sometimes as many as four times a day, and even at the nighttime, when he was suffering very much. As I stated before, I had a powdered preparation dusted over the surface, and where there would be a slough or hemorrhage from the part, of course that would be attended to. It kept a nurse constantly mopping the pus and bloody material that was running from his eyes and the cracked parts of the flesh; that you might term another putrefaction; and his bowels, of course, they were constipated in the beginning on account of the opiates. I had to give him opiates right along to allay the pain, and I had to give him bromides to quiet the nervous system, and he was unable to take any solid food whatever. He took liquid, and that was through a tube with his lips pressed open, and he got his food in that way; but, well, I don't remember just how long, I suppose it was a couple of months that way, and the parts, after the little tissue or skin began to spring up underneath, there was a throwing off of the other parts, and partly drying up of the surface, but there was exudate of pus and blood for over three months, and he suffered with pain that length of time very much, and his eyes, of course, the whites of the eyes—what you call the conjunctiva—after they had begun to open so I could see, they were sticking out of the parts. There was a raw piece of skin in the eye. His ears, there was a discharge from the ears; he complained of pain from them. Well, his general system, he was knocked out generally. I continued the dry treatment until the parts became hard and harsh, and then I used a stuff to soften them up periodically and also a solution. I had different antiseptics to bathe the body to prevent the formation of pus, and get it in as good sanitary condition as possible. His bowels were puffed quite a good deal on account of the flow of blood internally, and at times there were several days that his kidneys were congested to a certain extent. He did not pass urine so very freely, and at several times there were hemorrhages from the deep burn down into the muscles, not so very extensive, but now and then he would have a hemorrhage—two or three tablespoons full —and I was called several times on account of the hemorrhage, for fear he might bleed to death. His hands were burned, and, as I say, his finger nails were contracted; he couldn't move them any whatever, and he had to sit stationary, as much so as possible, just in a stationary position, to prevent any extraordinary pain." Pointing to the wounds, the physician thus described them to the jury: "Now, you see, the right ear, the upper third practically burnt off down to the head in one place, and leaving just a little part above there on the right ear, and in front you see the scar tissue running down here; that was very deep, and I suppose that scar tissue is an inch and a fourth in length, and possible one-third inch in width, extending down below the lobe of the ear— the canal of the ear. You cannot tell very much difference there in it and the side of the face here. You will see it was burned, but the skin has grown back on it, and getting back in a more normal condition. You see the nose here is a mass of scar tissue over the top, that extends possibly a third inch down on each side; that was running for something like one year; it was a year healing up; now and then it would heal up and break loose again. The upper lid, as you will see, has scar tissue there where it was last in healing. It was burned in the muscular tissue on the right side. I suppose the scar tissue is about one-fourth inch in width, in length about the same. On the left side of the lips the same. His lips here, you see, they move all right. Now the under lip on the right side is a mass of scar tissue, that is possibly half an inch long, and quarter of an inch wide — one-third inch wide. You see the contraction of the chin there. Here on the cheek bone is a small mass of scar tissue. Now you see under his neck, at the angle of the jaw, and underneath, the skin here was very badly burned, and this is a mass of scar tissue, which might be easily broken by cold weather, or anything that would act as an irritant. This scar tissue extends from one angle of the jaw to the other, and as to the length, I suppose it is something like eight inches, and right underneath the chin here, it is an inch and a half, and contracts the skin down there. He will never be able to raise his chin up very high on account of the contraction of the tissue there and muscular fiber. Now, you see the left ear, it was not burned so badly; it left more of it; but the upper and outer rim of the ear was completely burned off, and in front there is a mass of scar tissue that extends from the top of the ear to about an inch and a half below the left, and extending in front of it something like one inch, extending from the auditory canal in front. Now this is left in the same condition as the other. It is liable at any time to crack open, as exposure from cold weather. Now, you see on the right side, over the right clavicle, is a scar that extends about one inch and a half above the junction of the clavicle with the breast bone—the right collar bone—and extends down over the breast bone there for a couple of inches; something like that. Now, on the left side there is a large scar tissue there, over the left collar bone, that in length is possibly three inches, in width...