Bennett v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 07 June 1913
• Citation: 159 S.W. 132
• Parties: BENNETT v. GULF, C. & S. F. RY. CO.
• Court: Texas Court of Appeals

159 S.W. 132

BENNETT v. GULF, C. & S. F. RY. CO.

Court of Civil Appeals of Texas. Ft. Worth.

June 7, 1913.

Rehearing Denied July 5, 1913.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by Mrs. Lillie M. Bennett, administratrix, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Reversed and remanded.

Stone & Wade, of Ballinger, and S. C. Padelford, of Cleburne, for appellant. Lee & Lomax, of Ft. Worth, and Brown & Lockett, of Cleburne, and Terry, Cavin & Mills, of Galveston, for appellee.

CONNER, C. J.

The appellant, Mrs. Lillie M. Bennett, administratrix of the estate of Howard C. Bennett, deceased, instituted this suit as such administratrix and in her own right and for the use and benefit of their minor children, to recover damages for the death of said H. C. Bennett, alleged to have been caused by the negligence of the appellee railway company. The pleadings are voluminous, but we think for the purpose of our disposition it will be sufficient to state them briefly. In substance, it was alleged that in August, 1912, the defendant corporation was operating a line of railway, and as incident thereto owned and maintained, in the town of Cleburne, Johnson county, certain machine shops, roundhouses, numerous storage tracks, upon which were located a large number of oil tanks, oil tank cars, coaches, box cars, a large amount of lumber, and other material, all of which was closely related, and all of which was highly inflammable, and of very great value; that on or about the 12th day of said August an employé of the defendant company descended with a burning light through a manhole into a certain oil car, situated upon one of the switch tracks, and contiguous to the inflammable material mentioned; that said oil car, because of negligence in those whose duty it was to properly clean it, contained oil and gas which, coming in contact with the light of the employé descending through the manhole, exploded, threw burning oil and gas upon the adjoining inflammable material, thus causing a very great fire; that the said H. C. Bennett was at the time an employé of the defendant company, and in obedience to a warning immediately given, and to a rule of the company so requiring, as well also as to a personal command of the defendant's superintendent and fire chief, entered into the zone of the fire so created, and received burns and injuries from which he later died. It was alleged that the negligent origin of the fire was a proximate cause of his death. It was also alleged that the said Bennett was inexperienced in fighting fire, and ignorant of the danger in coming in close proximity to and in contact with such a fire as was raging at the time; that he was not warned of such danger at the time that he was ordered into it; that after entering within the influence of the fire as he did, cold water was thrown upon him, which tended to deceive him, and cause him to remain longer under its influence than he otherwise would, and it was charged that the act of the superintendent and fire chief, in ordering him into the fire under the circumstances, constituted negligence which proximately resulted in the death of said Bennett. Upon the conclusion of the evidence the court gave a peremptory instruction in appellee's favor, and, the verdict and judgment being in accordance with the instruction, the case is now presented to us upon the errors assigned.

It is in effect conceded, as indeed we think it must be, that the evidence raised the issue of a negligent origin of the fire; but, as stated to us on the submission, the court upon the authority of the case of Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, concluded that, even though the issues of negligence should be determined in favor of the plaintiff, the negligence charged could not constitute a proximate cause of the death of said H. C. Bennett, and this, therefore, becomes a material inquiry. The facts in the Seale Case are to the effect that the defendant railway company negligently caused a fire in the accumulated material on its right of way, which was communicated to the grass in an adjoining field and threatened the fence and other property of the owner; that the wife of the owner, and his daughter, about 15 years of age, went to the fire, and the little girl, in attempting to extinguish the fire, was burned to such an extent that she died. The decision, which is exceptionally clear in its treatment of the law on the subject, was to the effect that the negligence of the company in originating the fire was not the proximate cause of the little girl's death. In the court's application of the law to the facts of that case, however, the decision has been vigorously criticised by the author of "Street on Personal Injuries in Texas," pp. 91, 614, and notes, and expressly repudiated by the Supreme Court of Illinois in the well-considered case of Ill. Cen. Ry. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368, which in its circumstances is very similar to the Seale Case. The Seale Case also seems out of harmony with numerous other decisions cited by appellant in the case now before us. But notwithstanding the criticisms referred to, and of the conflict between the decision in the Seale Case and other less authoritative decisions, we have been unable to find any clear expression of our own Supreme Court which destroys or weakens the effect of the case of Seale v. G., C. & S. F. Ry. Co., and we, therefore, regardless of the inclination of some of us to the contrary view, feel impelled to now apply the Seale Case as authoritative. This being true, we see no way to distinguish the case now before us from the Seale Case in so far as the negligence of defendant company in originating the fire is to be considered. In other words, if the negligence alleged in the Seale Case could not legally constitute a proximate cause of the death of the little girl there burned, we cannot apprehend how the negligence of the defendant company in originating the fire under consideration can be held to be a proximate cause of Bennett's...