Ebersole v. Sapp
| Decision Date | 15 January 1919 |
| Docket Number | (No. 23-2643.) |
| Citation | 208 S.W. 156 |
| Parties | EBERSOLE v. SAPP. |
| Court | Texas Supreme Court |
Action by M. Sapp against F. E. Ebersole and the Houston Home Telephone Company. From a judgment of the Court of Civil Appeals, Fourth District (160 S. W. 1137), affirming a verdict and judgment against defendant, Ebersole, and in favor of the Houston Home Telephone Company, he brings error. Reversed, and judgment rendered for defendant Ebersole.
W. L. Cook, of Houston, for plaintiff in error.
Green & Boyd, of Houston, for defendant in error.
Plaintiff, M. Sapp, sued defendant F. E. Ebersole, together with the Houston Home Telephone Company and the Houston Gas Company, to recover damages for personal injuries. The suit was dismissed as to the Houston Gas Company. A trial to a jury resulted in a verdict and judgment against defendant Ebersole, the court instructing the jury to find in favor of the Home Telephone Company. On appeal the judgment of the district court was affirmed. 160 S. W. 1137.
Plaintiff was in the employ of defendant Ebersole, an independent contractor engaged in working upon the property of the telephone company. While at work bailing water out of a manhole, and using for this purpose a metallic bucket furnished him by defendant, gas which had accumulated in the manhole was ignited, and in the resulting explosion plaintiff was injured.
Plaintiff alleged negligence on the part of defendant in permitting the accumulation of gas, or other inflammable matter in the manhole; in failing to warn plaintiff of the presence of same, and the danger thereof; in furnishing and providing plaintiff with an iron bucket or a bucket made of some hard substance when defendant knew, or could have known by the exercise of proper diligence and care, of the danger of igniting said gas by striking said bucket against the cement walls of said hole, or other hard substance therein, and in failing to warn plaintiff of the danger of the gas becoming ignited in such manner; that the cause of the ignition of the gas was due to the striking of the bucket so furnished him by defendant against the wall of the manhole, which was made of cement, brick, or some other hard substance. His allegations and theory of the case were that the metal bucket, striking against the concrete, brick, or other hard substance in the manhole, generated a spark which ignited the gas, resulting in the explosion.
Defendant's theory was that plaintiff went into the manhole with a lighted cigarette, or struck a match to light a cigarette while in the manhole, thus causing an explosion of the gas. There was evidence that plaintiff did go into the manhole with a lighted cigarette, but plaintiff made denial of this and of having lighted a match while in the manhole.
The Court of Civil Appeals finds that plaintiff had been engaged in this character of work in various manholes for several weeks; that in some of the manholes there was an accumulation of gas, in others none, this being known to both plaintiff and defendant; that neither plaintiff nor defendant had knowledge that there was danger of generating a spark in the use of the bucket in such place and manner. It was admitted on the trial that a spark would ignite combustible gas such as was present in this manhole.
There was evidence that:
"Friction caused by a zinc or iron bucket or iron substance coming in contact with concrete will produce a spark, or coming in contact with brick will do it."
The undisputed evidence is that the sides of this manhole were built of soft porus brick, at the bottom was concrete finished off with a coating of cement; that the concrete was not a hard mixture, and the coating of cement somewhat softer than the concrete; that tests with an iron bucket in this manhole, striking same against the sides and bottom failed to produce a spark.
The general allegations as to unsafe place in which to work and failure to warn must be construed with reference to the explosion and to the cause of the explosion as specifically alleged. Thus viewed, the presence of gas and failure to warn are immaterial, except when considered with reference to the bucket so furnished and used. Given a proper instrumentality with which to work, the manhole, notwithstanding the accumulation of gas, would not have been an unsafe place. The danger of explosion from the accumulation of gas arose only by reason of the use of the metallic bucket. But for the furnishing...
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