Houston Belt & Terminal Ry. Co. v. O'Leary

Decision Date31 March 1911
Citation136 S.W. 601
CourtTexas Court of Appeals
PartiesHOUSTON BELT & TERMINAL RY. CO. et al. v. O'LEARY et al.<SMALL><SUP>†</SUP></SMALL>

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Amelia O'Leary and others against the Houston Belt & Terminal Railway Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Andrews, Ball & Streetman and A. L. Jackson, for appellants. John Lovejoy and J. W. Parker, for appellees.

McMEANS, J.

Appellees, Amelia O'Leary, for herself, and Irene O'Leary, a minor, suing by her mother and next friend, brought this action in the district court of Harris county, Tex., for the death of the husband and father, Thomas O'Leary, resulting from personal injuries inflicted upon him by the explosion of combustible materials loaded in a certain box car in the custody and charge of the defendants, Houston Belt & Terminal Railway Company and Gulf, Colorado & Santa Fé Railway Company, in the city of Houston, November 22, 1908.

The plaintiffs' first amended original petition, on which trial was had, alleged, in substance, that long prior to the date of his injury Thomas O'Leary was and had been chief engineer of the fire department of the city of Houston, with all the duties and powers vested in and imposed upon him by certain ordinances of said city, establishing and maintaining such department, embracing the duties and powers of going to fires and aiding in the extinguishment of same, with general supervision over the other firemen, and with various police powers; that on the 22d day of November, 1908, the defendants had brought into the city of Houston and placed upon their side tracks, in close proximity to residences and other buildings of said city, and at a place which was frequented by the public, a car load of inflammable and explosive material; that through the negligence of the defendants said materials were ignited, and a great conflagration was then and there imminent; that the said O'Leary, in performance of his official duties as chief engineer, together with other members of the fire department, went to the scene of the conflagration; that while in diligent and earnest effort to extinguish and prevent the spread of the flames an explosion of some of the contents of the car occurred, knocking the said O'Leary down, wounding and bruising him, and causing injuries from which afterwards on the 24th day of December, 1908, the said O'Leary died. And said petition specially alleged negligence on the part of defendants as the proximate cause of the injury and death, as follows: "That they omitted, as soon as the car was received in the said yard, to place the same upon their unloading tracks, where there would have been little or no danger of the contents thereof being exploded; but, instead, kept the car for an unreasonable and unnecessary length of time in a thickly settled part of the city, in the midst of engines and cars, the former containing large quantities of fire, and some of the latter containing inflammable freight, and which were constantly being switched, without any guard or watch over the said car to see that its contents were not ignited, and otherwise handled the car as though it contained ordinary freight, and the contents of the said car were caused to explode by fire communicated thereto from the said engines and by concussion as a result of bringing engines and cars in contact therewith, with improper and unnecessary force, or, if the contents were not caused to explode in such manner, then plaintiffs say that keeping the car at the place for the time and in the manner done constituted the same a nuisance, and the explosion of the contents, followed by a conflagration, were results that should have been anticipated by defendants and their said agents and employés in the exercise of ordinary care under the circumstances, and that the members of the fire department, including the chief thereof, would be drawn to the said fire, for the purpose of extinguishing the same, and protecting the surrounding property, and would probably be ignorant of the contents of the car, and of the danger of injury to which they would be exposed by an explosion thereof, and failed to notify said O'Leary of the contents of said car, or to warn him of the danger which he and the other members of the department would incur in attempting to extinguish the said fire, as was their duty to do, and as they could readily have done."

The defendants, after general demurrer, answered by pleas of (1) general denial; (2) contributory negligence on the part of Thomas O'Leary, in that he voluntarily and carelessly subjected himself to the danger of the explosion and placed himself in position whereby the injury was inflicted upon him; (3) a special denial that the alleged explosion and conflagration were the proximate result of any wrongful act on the part of defendants; and (4) a further special plea that the alleged negligence of defendants was remote in its relation to the injury and death of Thomas O'Leary, in that "the said Thomas O'Leary, prior to the time of approaching the car, knew and realized the existence of the conflagration, and of the explosive condition and tendencies of the contents of said car at and prior to the time of approaching the same, and coming in contact with said danger, and that, notwithstanding such knowledge and opportunity to know such facts and condition, the said Thomas O'Leary voluntarily encountered the danger," and thus the voluntary act of the said O'Leary intervened, and became itself the immediate and proximate cause of his injury and death, and the alleged negligence of defendants "was remote in its relation to the injury and death of deceased, * * * and that, in so far as they are concerned, the said explosions and the injury and death of deceased were the result of an unavoidable and inevitable accident, for which they are in no wise liable."

The case was tried before a jury, and resulted in a verdict and judgment for plaintiffs for $20,000, from which the defendants, after their motion for new trial was heard and overruled, have appealed.

Appellants requested the court to charge the jury to return a verdict in their favor, and the refusal of the court to so charge is made the basis of their first assignment of error. Their first proposition under this assignment is as follows: "Tom O'Leary, having entered the position of danger on defendants' right of way and railroad, without invitation, either express or implied, from defendants, was at most a mere licensee under the law, and not within the rule which would require the owner of premises to have them reasonably safe for those invited thereon; and the explosions having resulted from the necessary handling of freight which defendants were legally bound to accept and transport and deliver, and there being no proof of willful or wanton wrong, or gross negligence, on the part of defendants, causing the injury, they were not liable therefor, and peremptory instruction in their favor should have been given."

By their third proposition they contend that "the undisputed evidence showing that after the alleged negligent acts of defendants, on which this action is based, had produced their effect in causing the explosions to begin, and made the continuing dangerous situation manifest, Thomas O'Leary, with full knowledge of the occurrences and the dangers impending, left his position of safety, and knowingly, at his own election, entered into the place of peril at which he encountered the explosion, such volunteer act on his part intervening between the alleged negligence of defendants, and his injury became itself the proximate and supervening cause, without which his injury would not have occurred, thus leaving the alleged negligence of defendants remote in its relation to the injury, and not actionable in law."

The evidence in the record justifies the following conclusions of fact on the issues presented by the propositions quoted: On Saturday, November 21, 1908, at about 2:30 p. m., the day before O'Leary's injury, a box car loaded with various kinds of fireworks arrived in what is known as the "Houston South Yard," located south and east of the corporate limits of the city of Houston, where it remained until between 11 and 12 o'clock a. m. the next day, Sunday, when it was brought to what is known as the "Congress Street Yard," within the city limits. The car had a tag on it showing that it was loaded with explosives, and the fact that it contained explosives was known to the servants of defendants when handling and switching the car in the yards. The contents of the car was such as could be exploded either by spontaneous combustion or by concussion, but we conclude from the evidence that the explosion hereafter mentioned was due to concussion brought about by the negligence of the employés of the Houston Belt & Terminal Railway Company in causing a collision of the car with other cars in the yards. The car also had a tag on it indicating that it was to be weighed and thereafter to be placed on the "city track," so the switching crew accordingly placed it on the track convenient to the scales, known as the scales track. Between 2:30 and 3 o'clock p. m. Sunday, November 22d, while a switching crew of the Houston Belt & Terminal Company was engaged in switching cars on the track where the car of fireworks was located, this car was negligently kicked in on another track so that it ran violently against other cars, and this caused an explosion of some of the contents of the car, followed thereafter by frequent other explosions, at intervals, thus causing the car and contents to be come ignited and ultimately wrecked, and the contents consumed. After the explosions commenced a person not connected in any way with the defendants or with the fire department of the city of Houston turned in a fire alarm, and this brought a...

To continue reading

Request your trial
40 cases
  • Staab v. Rocky Mountain Bell Telephone Co.
    • United States
    • Idaho Supreme Court
    • February 1, 1913
    ... ... Co. v ... Frost, 93 Ark. 183, 124 S.W. 748; Houston Belt & ... Terminal Ry. Co. v. O'Leary (Tex. Civ. App.), 136 S.W ... ...
  • Carpenter v. O'Day
    • United States
    • Delaware Superior Court
    • January 6, 1987
    ...Sebach, 52 Ohio App. 362, 3 N.E.2d 686 (1935); Bandosz v. A. Daigger & Co., Ill.App., 255 Ill.App. 494 (1930); Houston B. & T.R. Co. v. O'Leary, Tex.Civ.App., 136 S.W. 601 (1911).4 In a number of cases, it has been recognized that an owner or occupier of the premises which firemen enter upo......
  • Superior Oil Co. v. Richmond
    • United States
    • Mississippi Supreme Court
    • March 18, 1935
    ... ... v. Fuller, 60 So. 475; Johnson ... v. New Orleans Terminal Co., 97 So. 795; Jones v ... Southern United Ice Co., 167 Miss. 886, ... Co., 30 N.D ... 456, 153 N.W. 429, L.R.A. 1915E 991; Houston Belt & ... Terminal Ry. Co. v. O'Leary, 136 S.W. 601; ... Bucholz v ... ...
  • Johnson v. Teal, Civ. A. No. 91-00081-A.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 11, 1991
    ...v. Campagna, 146 Tenn. 389, 242 S.W. 646 (1922); Clark v. Boston & M.R.R., 78 N.H. 428, 101 A. 795 (1917); Houston Belt & Terminal Ry. Co. v. O'Leary, 136 S.W. 601 (Tex.Civ.App.1911); Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203 8See also The Law of Torts at 431-32: Perh......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT