Cisco & N. E. Ry. Co. v. Texas Pipe Line Co.

• Decision Date: 04 March 1922
• Docket Number: (No. 9787.)
• Citation: 240 S.W. 990
• Parties: CISCO & N. E. RY. CO. v. TEXAS PIPE LINE CO. et al.
• Court: Texas Court of Appeals

240 S.W. 990

CISCO & N. E. RY. CO. v. TEXAS PIPE LINE CO. et al.

(No. 9787.)

Court of Civil Appeals of Texas. Ft. Worth.

March 4, 1922.

Rehearing Denied May 6, 1922.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Action by the Texas Pipe Line Company against the Cisco & Northeastern Railway Company and M. A. Wogan. From judgment for plaintiff against defendant Railway Company, and from judgment for M. A. Wogan against defendant Railway Company, the Railway Company appeals. Affirmed in part. Reversed and rendered in part.

Butts & Wright, of Cisco, for appellant.

H. S. Garrett, of Fort Worth, for appellee Texas Pipe Line Co.

Alexander & Baldwin, of Fort Worth, for M. A. Wogan.

DUNKLIN, J.

The Cisco & Northeastern Railway Company let a contract to M. A. Wogan to do for it some excavation work on its right of way. In order to perform that work it was necessary to blast rock in making excavation for the roadbed. While performing that work Wogan put in a heavy charge of explosives which threw large pieces of stone in the air, one of which pieces fell on and broke an iron pipe owned by the Texas Pipe Line Company and used to convey petroleum oil. This pipe line ran practically parallel with the right of way and about 60 feet distant therefrom. The place where the pipe was broken was about 300 feet from the place of the blasting, and the pipe at that place spanned a small gully and was uncovered. As the result of the break there was a considerable loss of oil which ran out on the ground. This suit was instituted by the Pipe Line Company against the railroad company and the contractor to recover for the value of the oil so lost. Judgment was rendered in favor of the plaintiff against both of the defendants for the value of the oil lost and in favor of Wogan over against the railroad company for the amount he may be compelled to pay on that judgment. From that judgment the railroad company has appealed.

In plaintiff's petition it was alleged that the work was done by Wogan in a careful and workmanlike manner, and that the blast was necessary in order to perform the work, which was inherently dangerous to the plaintiff's pipe line, which was constructed in close proximity thereto.

In another count in its petition it was alleged that, if said blast was not necessary to the proper construction of the railroad, or if the same was not done in a proper manner, then the defendants, and each of them, were guilty of negligence which was the proximate cause of the loss of the oil, and by reason of such negligence both were liable for the damages so sustained.

In another count it was alleged that the defendants were jointly engaged in constructing the railroad, and that neither of them had ever acquired any lawful authority to construct the road over the land where the blast occurred, in that such work was being done without permission of the owner of the land and without any condemnation proceedings instituted to condemn a right of way for the railroad across that tract of land, by reason of all of which defendants were wrongful trespassers on that tract, and therefore jointly and severally liable for the consequences of the blast so made.

The railroad company denied liability to plaintiff upon the ground that the work done by Wogan was performed by him as an independent contractor with the railroad company. The railroad company also prayed for a judgment over against Wogan in the event of a judgment against it in favor of the plaintiff. That plea over was predicated upon allegations to the effect that, as a part of the contract made with it by Wogan to do the work, Wogan agreed to be solely responsible for all damages resulting from his performance of the work and to hold the railroad company harmless as against any demand for injuries so resulting.

The defendant Wogan, after alleging that the blast was necessary to the construction of the road and was done under a contract with the railroad company in a careful and proper manner, and after further alleging negligence on the part of the plaintiff in failing to bury its pipe so as to protect it from such accidents, and especially after promising him so to do, further denied that he had contracted with the railroad company to hold it harmless against demands for such damages as were claimed by the plaintiff. Wogan further alleged that he was not liable to the railroad company by reason of the fact that the work was done in compliance with the plans and specifications provided for in his contract with the railroad company.

Wogan also filed a plea over against the railroad company in which he prayed for a judgment against that company for any amount he might be required to pay to plaintiff in the event of a recovery by plaintiff against him. The basis of that plea over consisted of allegations that the blast was done under a contract with the railroad company in compliance with the plans and specifications required, and that the blast was done in the usual and proper manner and was necessary in order to carry out and perform the work contemplated by said contract.

The trial was before the court without a jury, and no findings of fact or conclusions of law were filed. Under such circumstances every presumption will be indulged to support the judgment rendered, provided the same has a proper basis in the pleadings and proof.

We are of the opinion that the evidence was sufficient to show that the plaintiff lost the amount of oil for the value of which judgment was rendered. That proof consisted of the testimony of E. J. Blackwell. He testified that the pipe was a gravity pipe line, and that there was about 3 miles of pipe that was drained, the pipe being a 6-inch pipe. He further testified that a pipe of that size and length would hold 500 barrels of oil or more. On cross-examination he further testified as...