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

• Decision Date: 25 January 1922
• Docket Number: (No. 271-3499.)
• Citation: 236 S.W. 714
• Court: Texas Supreme Court
• Parties: CLEMENT v. GULF, C. & S. F. RY. CO.

Page 714

236 S.W. 714

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

(No. 271-3499.)

Commission of Appeals of Texas, Section B.

January 25, 1922.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by W. J. Clement against the Gulf Colorado & Santa Fé Railway Company. From a judgment of the Court of Civil Appeals (220 S. W. 407) reversing a judgment in his favor, plaintiff brings error. Affirmed.

Stuart, Bell & Moore, of Gainesville, for plaintiff in error.

Terry, Cavin & Mills, of Galveston, Garnett & Garnett, of Gainesville, and Lee, Lomax & Wren, of Fort Worth, for defendant in error.

POWELL, J.

In stating the case, we feel we can do no better than quote as follows from the opinion of the Court of Civil Appeals:

"There was an explosion of gasoline in a tank car in the yards of the Gulf, Colorado & Santa Fé Railroad Company in the town of Gainesville. W. J. Clement was seriously burned as a result of that explosion, and the railway company has prosecuted this appeal from a judgment rendered in his favor for damages for the injuries so sustained.

"R. G. Porter was the defendant's yardmaster at Gainesville, and, upon discovering that gas was spewing from the car, called upon W. J. Clement to remedy that leaky condition. Clement was then working for the Producers' Refinery Company in Gainesville, and frequently had been called upon by Porter to look after leaky oil cars coming into defendant's yards in as much as he had the necessary tools and equipment for that work, with which he was familiar. Clement had formerly been employed by the railway company in its train service as a switchman and brakeman, but was not so engaged at the time of the accident. The railway company always paid him for his services in relieving the leaky condition of cars.

"When Porter applied to Clement to stop the leak in the car on the occasion of the accident, he told Clement that the contents of the car was `unrefined naphtha,' and that was the designation of its contents in the waybill which came with the car and was the source of the information given by Porter to Clement. The car contained casing-head gasoline or casing-head gasoline blend instead of unrefined naphtha, and was an interstate shipment originating in Drumright, Okl., and moving to Port Arthur, Tex. The place of the origin of the shipment was not on the defendant's line, but upon the line of a connecting carrier; the waybill designating the contents of the car as unrefined naphtha being furnished to the defendant by the connecting carrier. In the top of the car there was a manhole which was closed by what is called a dome cap screwed into the opening of the hole. Near this dome cap there was also a three-quarter inch plug, and the leak mentioned was around this plug and the dome cap. Porter went with Clement to the car, and, after examining it and discovering the source of the leak, they took the plug out and replaced it with another. Gus Vineyard, one of Clement's employees in his work for the Producers' Refinery Company, went with him as an assistant to remedy the leaky condition of the car.

"The gas pressure from within the car was so strong that it seriously interfered with the work of replacing the old plug with the new. After the new plug was put in, and after plaintiff and Porter had loosened the dome cap, the dome cap was blown out by the gas pressure in the car and the escaping gas and gasoline mixed therewith, which was thrown high in the air, caught fire, and before they could escape Porter and Clement were both severely burned; the injuries to Porter proving fatal."

The trial was before a jury, whose verdict was upon special issues submitted by the court. Thirty-six questions were propounded to the jury, but there were not that many controlling issues in the case. Necessarily many of the questions submitted to the jury related to the evidence bearing upon the issues and were not the issues themselves.

Upon the answers of the jury to the special issues, judgment was rendered by the trial court in favor of Clement for the sum of $7,500. The jury had assessed his damages at $10,000, but had deducted 25 per cent. thereof on account of his contributory negligence.

The railway company appealed from said judgment to the Court of Civil Appeals at Fort Worth, where the judgment of the district court was reversed, and judgment there rendered in favor of the railway company. See (Civ. App.) 220 S. W. 407.

Clement then sued out a writ of error to the Supreme Court. It was granted, and the cause is now before us for review and recommendation.

We do not deem it necessary to set out all of the special issues submitted to the jury, but will content ourselves with quoting a few of them which have application to what we deem the vital points upon which the decision must turn. Such special issues, and the jury's answers thereto, are as follows:

"Did the yardmaster, R. G. Porter, request plaintiff to inspect the car which afterwards exploded, and did he request that he, the plaintiff, offer such suggestions as to what, if anything, should be done with it? Answer: Yes."

"If you answer the foregoing question in the negative, then you need not answer this question, but, if in the affirmative, then was it negligence on the part of the defendant, acting through its yardmaster, to so request the plaintiff to inspect said car under the conditions as they existed at the time such request was made? Answer: Yes."

"If your answer to question No. 2 is in the negative you need not answer this, but, if you answer `Yes,' then was such negligence the proximate cause or one of the proximate causes of the plaintiff's injuries? Answer: Yes."

"Did the plaintiff go and inspect the car upon the request of the yardmaster upon the representation of said yardmaster that the car contained unrefined naphtha? Answer: Yes."

"What did the car contain immediately prior to the explosion? Answer: Casing-head gasoline, or a casing-head gasoline blend."

"Did the plaintiff learn prior to the time the car exploded of what its real contents was? Answer: Yes."

"Did the car contain a placard upon its dome, or dome cap, containing a caution against the removal of the dome cap while there was gas pressure inside the car? Answer: Yes."

"If your answer to question 17 is `No,' you need not answer this question, but, if your answer is `Yes,' then did the plaintiff see such placard, or could he by the exercise of ordinary care have seen such placard? Answer: Yes."

"Did the plaintiff at any time while he was upon said car, either acting by himself or in conjunction with another, loosen the dome cap? Answer: Yes."

"If your answer to the question No. 19 is `No,' you need not answer this question, but if your answer is `Yes,' then did the loosening of such dome cap cause or contribute to the subsequent explosion? Answer: Yes."

"If your answer to question No. 20 is `No,' you need not answer this question, but, if your answer is `Yes,' then was such loosening or unscrewing of the dome cap the proximate cause or one of the proximate causes of plaintiff's injury? Answer: Yes."

"If you have answered that plaintiff either by himself or acting with another did not loosen the dome cap, you need not answer this, but, if you have answered that he did, then would the explosion have occurred but for that act? Answer: No."

"Before said Clement went to said tank car on said morning of May 18, 1917, had he had any experience in handling the contents of tank cars when such contents were gasoline? Answer: Yes."

"If you answer yes, then state for how long a time he had had such experience? Answer: Five or six years."

"From W. J. Clement's experience and knowledge obtained by him while in the service of the G., C. & S. F. Ry. Co. as switchman and brakeman, did he at the time of going to said car know that it was custom and practice of the defendant to keep its switch lights burning in its yards at Gainesville, day and night? Answer: Yes."

"After going upon said tank car and prior to the explosion did plaintiff from his experience in handling gasoline or otherwise know or believe that the contents of said car was casing-head gasoline? Answer: Yes."

"If you answer issue No. 29 `Yes,' then state whether or not said Clement remained upon said tank car after knowing or believing that the contents were casing-head gasoline? Answer: Yes; just a short time. They were starting to get down when the explosion came."

"Would a reasonably prudent and careful man, in the exercise of ordinary care for his own safety, and possessing the knowledge and experience you may find plaintiff possessed at the time, have remained and worked on said car under the circumstances and conditions, which you may find from the evidence existed at the time? Answer: No."

"In requesting said Clement to come to said car, state whether R. G. Porter requested his presence as an expert in dealing with gasoline and other inflammable liquids? Answer: Yes."

"At the time the plaintiff went upon the car was he in the employment of the defendant? Answer: Yes."

"If your answer to question 33 is `No,' you need not answer this question, but if your answer is `Yes,' did the plaintiff have knowledge of the risks and danger incident to employment in which he was at the time engaged? Answer: No; not at the time he went on the car."

"Does the evidence in this case show that the plaintiff was guilty of contributory negligence which was the proximate cause or one of the proximate causes of such injuries as he sustained? Answer: Yes."

The first question discussed by the Court of Civil Appeals is whether or not the relation of master and servant existed between the railway company and Clement at the time of the accident. The company contended, in spite of the jury's finding to the contrary, that Clement was an independent contractor; that, under the undisputed facts of this case, he was such as a matter of law. The Court of Civil Appeals...