Keystone-Fleming Transport, Inc. v. City of Tahoka

• Decision Date: 16 June 1958
• Docket Number: KEYSTONE-FLEMING,No. 6788,6788
• Citation: Keystone-Fleming Transport, Inc. v. City of Tahoka, 315 S.W.2d 656 (Tex. Ct. App. 1958)
• Parties: TRANSPORT, Inc., Appellant, v. CITY OF TAHOKA, Appellee.
• Court: Texas Civil Court of Appeals

Page 656

315 S.W.2d 656

KEYSTONE-FLEMING TRANSPORT, Inc., Appellant, v.CITY OF TAHOKA, Appellee.

No. 6788.

Court of Civil Appeals of Texas, Amarillo.

June 16, 1958.

Rehearing Denied Sept. 8, 1958.

McWhorter, Cobb & Johnson, Lubbock, for appellant.

Calloway Huffaker and Harold Green, Tahoka, for appellee.

PITTS, Chief Justice.

This appeal was from a judgment rendered on October 12, 1957, awarding appellee, City of Tahoka, property damages in the sum of $2,500 as against appellant, Keystone-Fleming Transport, Inc., upon a jury verdict returned on June 15, 1957, which verdict supports the judgment.This suit arose out of an explosion from a fire already burning which involved two trucks, each with a cab and with a semi-trailer attached, loaded with tanks of liquid gas or butane and propane, which occurred on a public highway about six miles west of Tahoka, Texas, on or about April 26, 1953.Appeals from several suits arising out of this occurrence have been before this Court previously, including a venue action between the parties here involved resulting from the original pleadings filed herein, 285 S.W.2d 869.However, this suit finally tried on the merits before a jury was heard on new and additional pleadings filed with the evidence having been developed much more fully than that heard on the venue issue.

Appellee filed this suit which went to trial on its second amended original petition, alleging in effect that appellant's two employees or agents were driving the two said loaded trucks, one closely behind the other, upon a level highway with clear vision, soon after midnight on the date in question when, as a result of the negligence of one or both such employees, the two trucks and the liquid gas tanks thereon collided with each other causing a flash of fire endangering the lives of appellant's said employees; that upon being advised of the fire and the possibility of the truck operators being entrapped in the truck cabs, appellee's volunteer fire department rushed immediately to the scene of such with one of appellee's fire trucks for the purpose of rendering whatever aid might be possible; that upon arrival at the scene, appellee's firemen parked their fire truck approximately 250 feet from the burning trucks, one on each side of the paved highway, and by the use of a long hose and a fog nozzle as a protective screen they carefully examined the cab of one of the burning trucks but found no one in it and concluded the raging fire was too serious to try to examine the cab of the other burning truck and further concluded that the danger was so imminent that they should hurriedly move away from the danger, but before they could roll up the fire truck hose and get away one of the liquified petroleum gas tanks exploded with a portion of the said tank hitting appellee's fire truck with such force as to cause material damage in the sum of $6,000; that by reason of such alleged facts appellee was entitled to recover under the doctrine of res ipsa loquitur, meaning 'the thing speaks for itself'; and that in the alternative appellee likewise pleaded numerous special acts of negligence of appellant's said employees which proximately caused its damages.Appellant joined issues with appellee and further alleged that appellee's firemen voluntarily pleaced themselves and the fire truck in a position of peril and that they likewise poured cold water upon the burning trucks and equipment, which resulted in the explosion and damages of the fire truck.

Upon the trial the jury found in effect that the collision of appellant's trucks occurred by reason of the negligence of appellant's truck drivers and that such negligence was a proximate cause of appellee's damages; that appellee's firemen had reason to believe that there might be a person entrapped in one or both of the cabs of the burning trucks at the time they arrived at the scene; that a person entrapped in the cab of either of the burning trucks at such time would have been in a position of imminent peril; that by reason of facts shown such possible entrapment and imminent peril would have caused firemen in the exercise of ordinary prudence to attempt to go to the burning trucks at the time they arrived in an attempt to rescue such person or persons; that appellee's firemen went to the burning truck in question in an attempt to rescue any person or persons that might have been entrapped therein; that by reason of the evidence showing a probable position of imminent peril of any person or persons who might have been entrapped in either of the cabs of the burning trucks was such as would cause ordinary prudent firemen to attempt a rescue without time for deliberation as to the consequences; that one or the other of appellant's truck drivers failed to keep his truck under proper control which failure was negligence that proximately caused appellee's damages; that one or the other of appellant's truck drivers failed to keep a proper lookout at the time and place in question which failure was negligence that proximately caused appellee's damages; that appellant's driver of the rear truck failed to stop his said truck while following the lead truck on the occasion in question in time to avoid the collision which failure was negligence that proximately caused appellee's damages; that appellant's driver of the rear truck was driving too closely behind the lead truck on the occasion in question which was negligence that proximately caused appellee's damages; that the tank which exploded and damaged appellee's fire truck would not have within itself exhausted its liquified gas through pop-off valves except for some intervening cause; that appellee did not assume the danger and risk involved in fighting fires outside the city limits; that appellee's firemen were not negligent under the facts and circumstances in placing the fire truck in the vicinity of the burning trucks of appellant; that the placing of the fire truck of appellee by its firemen in the vicinity of appellant's burning trucks was not the sole proximate cause of appellee's damages; that appellee's damages were not solely and proximately caused by the negligence of some third person or persons not a party or parties to this law suit; that at the time and place of the explosion in question which caused appellee's damages, the two burning fuel trucks in question were under the exclusive control and management of appellant; that appellee's injuries and damages were not the result of an unavoidable accident and that the difference in the reasonable cash market value of appellee's fire truck immediately before and immediately after the explosion in question was $2,500.

Based upon the findings of the jury, the trial court rendered judgment accordingly, from which judgment appellant perfected its appeal and presents four points of error.Appellee has challenged appellant's first, second and third points of error on the alleged grounds that they are each too vague, too indefinite and too general to be considered by this Court and that they are each multifarious and do not comply with the provisions of Rules 322,374and418 of the Texas Rules of Civil Procedure.There is some merit to the challenges made by appellee since appellant has not in every instance pointed out specific grounds of alleged erors or particular rulings of the Court about which complaints are made and in some instances it has complained about more than one specific error in the same point.However, because of our liberal indulgence in considering points of error so long as we can determine with some degree of certainty what appellant is complaining about, we are considering appellant's said points.

Appellant has charged in effect that the evidence relied upon for a judgment is hearsay and speculative and furnished nothing more than inferences of alleged facts; that nothing more than an existing condition was shown which might have remotely made the claimed injury and damages possible; that the doctrine of res ipsa loquitur does not apply because appellee failed to show that the instrumentality causing the damage was under the control and management of appellant at the time and place in question, because appellee failed to show a duty owed by appellant and a breach thereof, and because there was a failure to show a causal connection between the claimed damages and any act or omission of appellant.

Some of the evidence heard is conflicting.When the evidence is conflicting but there is evidence of probative force to support the jury findings and the trial court's judgment, such should not be disturbed on appeal.Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99.To test the sufficiency of the evidence to determine if it has sufficient probative force to support the jury findings and the judgment of the trial court, we must give credence only to the evidence and circumstances favorable to such findings and judgment and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such findings and judgment.Truelove v. Truelove,...