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

• Court: Texas Supreme Court
• Writing for the Court: Phillips
• Citation: Gulf, C. & S. F. Ry. Co. v. Bennett, 219 S.W. 197 (Tex. 1920)
• Decision Date: 03 March 1920
• Docket Number: (No. 2609.)
• Parties: GULF, C. & S. F. RY. CO. v. BENNETT et al.

219 S.W. 197

GULF, C. & S. F. RY. CO. v. BENNETT et al.

(No. 2609.)

Supreme Court of Texas.

March 3, 1920.

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

Action by Mrs. Lillie M. Bennett, administratrix, and others, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of the Court of Civil Appeals (159 S. W. 132) reversing a judgment in favor of defendant, the defendant brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Terry, Cavin & Mills, of Galveston, Brown & Lockett, of Cleburne, and Lee & Lomax, of Ft. Worth, for plaintiff in error.

Bryan, Stone & Wade, of Ft. Worth, and S. C. Padelford, of Cleburne, for defendants in error.

PHILLIPS, C. J.

H. C. Bennett, an employé of the defendant railway company, while engaged with other employés in fighting a large fire in the yards of the company at Cleburne which threatened to destroy all the property in the yards and adjacent property as well, became overheated, with some parts of his body blistered or burned, causing his death. The suit was one for damages on this account by his wife, as administratrix of his estate, and in her own right and for the use of their minor children.

The origin of the fire was an explosion of the gas in an empty oil tank car, caused by an employé named Campbell going into the car for the purpose of repairing it, with a lighted torch. It spread quickly to near-by sheds, and elsewhere, burned fiercely, fanned by a strong wind, for several hours, producing a general conflagration, consuming a large amount of property within the thirty or forty acres comprising the yards of the company, and at certain stages imperilling all the property, shops, etc., in the yards. It produced, as pleaded by the plaintiffs, a condition of great excitement and emergency. The numerous employés of the company in and about the yards, including Bennett, joined generally in the effort to subdue it. A superintendent of one of the company's departments about the shops or yards, named Dunlop, together with another official named Bird, were evidently attempting to in some measure direct the efforts of the men. The company had fire-plugs in the yards, and its own hose which the men were using. To lessen the effect of the heat upon those engaged in the immediate zones of the fire, water from the hose was thrown upon them by others. Some was thrown upon Bennett and the men immediately with him while he was helping to subdue the fire.

At the direction or request of Dunlop and Bird, Bennett, with others went, at a certain stage of the fire, into the particular place where his injuries were received, a place where the fire was intense, to relieve other men — to prevent their becoming too hot. About the time of this direction and while Bennett had hold of the hose at this place, Dunlop, according to the undisputed testimony of one of the men with Bennett, a witness introduced by the plaintiffs, told Bennett and his companions "not to get too hot and not to stay in there if we got tired and that if we got too hot or tired to get out and let others relieve us." "There were other men there at all times to relieve us," stated this same witness.

It appears from the testimony that the water was thrown upon Bennett and the men with him, at their own request — to keep them cooled off while they were fighting the fire. The fire occurred in midsummer, and according to other testimony, undisputed, this was the proper thing to do.

Bennett was a strong man, in full physical vigor. It is urged that he was inexperienced in fighting fire, but there is no proof that Dunlop or Bird knew of his being any less experienced in...