Buckeye Cotton Oil Co. v. Campagna

• Decision Date: 05 July 1922
• Parties: BUCKEYE COTTON OIL CO. v. CAMPAGNA.
• Court: Tennessee Supreme Court

242 S.W. 646

146 Tenn. 389

BUCKEYE COTTON OIL CO. v. CAMPAGNA.

Supreme Court of Tennessee.

July 5, 1922

Certiorari to Court of Civil Appeals.

Action by Antonio Campagna, administrator, against the Buckeye Cotton Oil Company. Judgment for plaintiff was reversed, and case remanded for new trial by the Court of Civil Appeals and both parties petitioned for certiorari. Reversed and dismissed.

Ewing King & King, and A. B. Knipmeyer, all of Memphis, for plaintiff.

Holmes & Canale and Wilson & Armstrong, all of Memphis, for defendant.

GREEN J.

This suit was brought by the administrator of Frank Campagna deceased, to recover damages for the death of the latter which occurred at the plant of the plaintiff in error, Buckeye Cotton Oil Company. There was a judgment for the plaintiff below. On appeal this judgment was reversed by the Court of Civil Appeals for errors in the charge of the trial judge, and the case was remanded for a new trial. Both parties filed petitions for certiorari. The plaintiff in error insists, among other things, that its motion for a directed verdict in its favor should have been sustained by the trial court, and that the Court of Civil Appeals erred in not so holding. The defendant in error contends that the Court of Civil Appeals erred in failing to affirm the judgment below.

The plaintiff in error is a manufacturer of cotton seed oil, and has a large mill about 2 miles outside of the corporate limits of Memphis. The deceased was a member of the Memphis Fire Department, and met his death while he and his associates were fighting a fire on the premises of the plaintiff in error in September, 1918.

The fire was in a wooden seed house or shed. Projecting on either side of the main house was a shed roof, under which a railroad track was laid, and cars were run along this track and under the projecting shed to be loaded and unloaded. The exact width of this projecting shed does not appear, but it was wide enough to cover an ordinary box car and high enough from the ground to permit the passage under it of such a car. The seed house and projecting shed were about 250 feet long. The projecting shed was constructed somewhat after the style of an awning. It had no supports from the ground along its outer edge. The timbers supporting the roof of the shed rested on the wall plate of the wall of the seed house, and extended into the seed house, and were nailed to the timbers which supported the roof of the seed house. The timbers supporting the roof of the projecting shed were also supported by braces placed at an angle of 45 degrees with the upper ends of the braces against these timbers and the lower ends nailed to the upright studding of the wall of the seed house.

A large iron pipe about 10 inches in diameter ran from another seed house on these premises, and passed overhead and through the seed house which burned. This pipe was very heavy. It was 22 feet above the ground, and at the burned seed house was supported by a sort of platform, which rested upon the projecting shed. The pipe then passed on through the roof of the seed house. Before reaching the projecting shed this pipe rested on another seed house. The distance between these two supports was 50 feet. There was no intervening support for the pipe. Proof was introduced tending to show that the construction just detailed was bad construction; that in view of the weight of this pipe there should have been an intervening support along this 50-foot stretch; and that the absence of such intervening support put undue weight on the seed house which burned and the projecting shed, and made the pipe more likely to fall.

Prior to the accident there had been a smoldering fire in some cotton hulls in the seed house which was destroyed. Employees of the plaintiff in error had been watching this fire. During the night on which the accident occurred the fire got beyond control, and the night watchman at the mill telephoned to the Memphis Fire Department for help. This night watchman, Daniels, also aroused the superintendent of the mill, who lived on the premises, and the latter approved of Daniels' act in calling the fire department.

Daniels assembled a crew of men, and he was joined by one Beasley with another crew of men. Beasley was a mechanic in the employ of plaintiff in error, and was engaged with several men that night in working on one of the boilers at the plant.

All these men under the direction of Daniels and Beasley began fighting the fire before the firemen arrived, and for this purpose some of them went under the projecting shed. Beasley concluded that it was dangerous for the men to stay under this shed, that it was likely to fall, and ordered all the men out from under the shed. The firemen got there about this time.

Two companies from the Memphis Fire Department came out along with Capt. Burke and Capt. Sellas in charge. Chief Fitzmorris and Assistant Chief O'Neil also came out, and were present, directing the operation of the firemen. The firemen went under the shed heretofore described to better reach the fire inside the seed house, and while under this shed almost the entire shed fell, killing Frank Campagna and injuring several other firemen. As heretofore stated, the premises of plaintiff in error were located outside the corporate limits of Memphis. It...