Constantin Refining Co. v. Martin

• Decision Date: 16 October 1922
• Docket Number: 189
• Citation: 244 S.W. 37,155 Ark. 193
• Parties: CONSTANTIN REFINING COMPANY v. MARTIN
• Court: Arkansas Supreme Court

244 S.W. 37

155 Ark. 193

CONSTANTIN REFINING COMPANY v. MARTIN

No. 189

Supreme Court of Arkansas

October 16, 1922

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed.

Breckenridge Bostick & Daniel, and Moore, Smith, Moore & Trieber, for appellant.

The attractive nuisance doctrine is not applicable, since the deceased was past fourteen years of age, unusually bright and accompanied by her father and uncle and aunt, and the infancy of the trespasser raised no duty towards her where otherwise none would exist. The bare fact of production of oil or gas by the defendant on its leased lands raised no presumption of negligence in its operations. 153 Pa. 366; 26 A. 644; 20 L. R. A. 642. The premises where the accident occurred were not under the control of defendant. To reach the place one had to cross the railroad track, which in itself is a constant warning of danger. 97 Ark. 438. Defendant was not negligent in capping the well; it was required to do so by law. C. & M. Dig., sec. 7306. In order to connect defendant with the creation of the crater, the facts would have to be supplied by conjecture and speculation, and such a verdict could not stand. 117 Ark 655. There was nothing, according to usual experiences, by which defendant should have apprehended the result. The test of responsibility is whether such result as did happen was probable or likely to occur in the usual experiences of mankind. 171 Mass. 536. There are no cases directly in point where liability is sought to be imposed for an accident on property not controlled by a defendant, and it is only by analogy that we may test the liability in this case. The courts have uniformly held that where one creates some defective condition on lands, and afterwards transfers possession to another, he is not responsible for injury occurring after he has passed control. 96 Ark. 442. For comparison see the following cases. 114 Ark. 218; 150 Ia. 403; 32 L. R. A. (N. S.) 743; 63 Ark. 65; 290 Ill. 395; 175 Mass. 510; 65 Kan. 436; 69 Ark. 489; 90 Ark. 278; 48 Ark. 491; 104 Ark. 236; 114 Ark. 218; 227 S.W. 166; 103 Ark. 226. Defendant's instruction No. 16, showing distinction between active and passive negligence as applied to implied licensees, should have been given without the modification. 74 F. 350.

Mehaffy, Donham & Mehaffy, and Rose, Hemingway, Cantrell & Loughborough, for appellees.

The attractive nuisance doctrine applies. 124 Ark. 1; 100 Ark. 76. Any negligence that might be imputed to the father could not be so imputed to the appellee. 77 Ark. 398; 59 Ark. 180. It is no defense that the escape of the dangerous agency from the premises of defendant was not due to its personal negligence. L. R. 1 Exch. 265; 1 Eng. Rul. Cas. 235; 116 Ark. 433; 141 Ark. 32; see note to 15 L. R. A. (N. S.) 535. Appellant is in no attitude to urge the defense of liability to a trespasser, for such defense is personal to the owner of the premises trespassed upon. 53 Ark. 381; 109 A. 653; 153 N.Y.S. 120; 92 S.E. 559; 29 Cyc. 443; 77 N.Y.S. 820; 70 N.E. 1052; 37 N.Y. 637, 97 Am. Dec. 761; 83 N.E. 477. The duty devolved on appellant to properly safeguard the dangerous place, even though situated on the property of another. 79 Ark. 490. Its negligence in not so doing was the proximate cause of the injury. 95 Ark. 297; 134 Ark. 1; 104 Ark. 59; 137 Ark. 217; 124 Ark. 599; 70 P. 635. Where the intervening cause concurs with the negligence of the wrongdoer, the first wrongdoer is liable and the second may also be. 31 L. R. A. (N. S.) 559; 49 Cal. 87.

MCCULLOCH C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages sustained on account of the death of a young girl, which was caused by an explosion or ignition of natural gas in the oil fields near El Dorado. The plaintiff sued as administrator for the benefit of the estate of the decedent, and for the benefit of the next of kin, and he also sued in his individual right as parent of the decedent, who was about fourteen years of age. The plaintiff recovered damages in the trial below, and the defendant appealed.

The defendant, Constantin Refining Company, was operating in the El Dorado oil field, and was engaged in drilling for oil on a tract of land on which it held a lease. A few weeks before the occurrence which caused the death of the girl, Mary Martin (which was on the afternoon of Sunday, June 13, 1920), the defendant brought in a producing well, which, after a few days, it succeeded in capping so as to prevent the escape of oil or gas from the mouth of the well.

There is no evidence in the case of any escape of gas in noticeable quantities from the mouth of the well. However, a few days after the well was capped it was found that there was an escape of gas through fissures in the earth to the surface, and at a point 950 feet distant from the well there was a crater formed in the bed of a small stream of water. There was no evidence adduced directly showing that the escape of gas to the surface through fissures was caused by capping defendant's well, but for the purpose of the present discussion we will assume that the proved circumstances warranted that inference and that the crater was caused in that way. The crater was on another tract of land than that on which the well was located--a tract in which the defendant had no interest and over which it had no right to exercise control. It was on a tract of fenced and cultivated land known as the Parnell field, which was owned by certain persons at El Dorado named Parnell, and on which another oil company held a lease for the development of oil and gas.

A railroad track was between defendant's tract of land and the Parnell tract, and the track was on a dump, or embankment, twelve feet high. The crater was distant from any public road and on the line of the railroad right- of-way and the Parnell tract, and when it opened it blew up the fence which marked the line of the right-of-way. It was about twenty feet in diameter, and was full of muddy water, which was forced upward by eruption of the escaping gas, and mud and water were thrown up to a height of about fifteen feet. This caused a loud roar, which could be heard at considerable distance, and there was a noticeably strong smell of gas around it.

This was such an unusual situation that it attracted a great deal of attention, the scene being only a few miles distant from the city of El Dorado. There was a large number of visitors to the scene for the purpose of witnessing it, and on the day on which the explosion occurred, which was on Sunday, the scene was visited by large crowds. Visitors usually parked their cars and other vehicles in the road or lane a short distance from the crater and walked across defendant's land until the railroad was reached, and then they walked down the railroad to a trestle opposite the crater.

Defendant erected on its own premises warning signs indicating danger and directing that there be no smoking. It does not appear that these signs were erected after the crater was blown in, or that they had reference to the danger of visiting the crater, but they were probably erected prior to the bringing in of the well, as warnings of danger to those visiting the fields.

On the Sunday afternoon in question, Mary Martin, in company with her parents and several other relatives, came to the scene of this crater to witness the remarkable phenomenon, and the party approached in the usual way indicated above. Some of the Martin family remained standing on the railroad track, but Mary, in company with her uncle and aunt, walked out toward the crater and was standing between it and the railroad trestle when the explosion occurred. The gas in the air was ignited and Mary Martin was severely burned, and died a short time thereafter. There were five persons, in all, who died as a result of the explosion.

The evidence shows--at least the only account given of the cause of the explosion- -that the ignition of the gas was caused by a young man named Hayes striking a match with which he was lighting a cigar. The witnesses say that when he applied the match to the cigar in his mouth a flash of fire was seen from his mouth to the crater.

Liability is sought to be imposed on the defendant on the ground that it caused a dangerous agency to escape, and failed to exercise care to prevent injury to others.

The court submitted the case to the jury on instructions which stated the law of the case to be that if the defendant "negligently caused or permitted a large pool of oil or gas * * * * to accumulate and spread on adjacent property, and negligently failed to guard and protect persons who they knew were constantly congregating in the vicinity of said pool of oil or gas," it would be liable for injury to other persons while in the exercise of ordinary care for their own safety.

We deem it unnecessary, in view of the conclusion which we have reached, to discuss the instructions of the court, but assuming the existence of the facts hereinbefore recited, and drawing from them the conclusion most favorable to plaintiff's right of action, we proceed to determine whether or not, in any view, there are facts from which liability can be imposed upon the defendant for the injury which...