Marshall & E. T. Ry. Co. v. Sirman

• Decision Date: 22 January 1913
• Citation: 153 S.W. 401
• Parties: MARSHALL & E. T. RY. CO. v. SIRMAN.
• Court: Texas Court of Appeals

153 S.W. 401

MARSHALL & E. T. RY. CO. v. SIRMAN.

Court of Civil Appeals of Texas. Texarkana.

January 22, 1913.

Rehearing Denied February 6, 1913.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by Mrs. J. T. Sirman against the

Marshall & East Texas Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

F. H. Prendergast, of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.

HODGES, J.

On or about the 21st day of August, 1911, Terry Sirman, the minor son of the appellee, was injured by an explosion of gasoline vapor while attempting to operate a gasoline engine belonging to the appellant, and used by it for pumping water into its railroad tank. Sirman died within a few hours afterwards from the effects of his injuries. The appellee, his mother, brings this suit to recover damages for the loss of his services during his minority, and for what her son would have contributed to her support and maintenance had he lived.

Omitting the formal parts, the petition alleges, in substance, as follows: That at the town of Ashland, on appellant's line of railroad, it had installed a pumping station in which a gasoline engine was used to pump water into a tank, from which the locomotives obtained the necessary supply; that this machinery was inclosed in a small room with only one door and no windows or other openings for ventilation. The third and fourth paragraphs of the petition are as follows: "That Terry Sirman, on or about the 21st day of August, 1911, entered into a contract with the station agent of the defendant, at Ashland, to assist said station agent in the operation of said pumping station, as well as other duties around said station; that with the consent, knowledge, acquiescence, and under the direction of said station agent, on or about the 21st day of August, 1911, and in the performance of his duties, by virtue of the contract with the said station agent, he proceeded to operate the said gasoline engine for the purpose of pumping water for the defendant company, as was the duty of the said station agent and himself to do; that upon entry of the room at the pumping station, wherein the said gasoline engine was operated, and upon attempting to start the said engine, it suddenly exploded and enveloped the said Terry Sirman in a flame of fire, from which he died; that in the large well from which the water was pumped, and suspended above the water and beneath the engine, was a large gasoline tank, which was hidden from the view of the deceased; the said tank serving as a reservoir for the storage of gasoline, and was connected with a small tank situated above the floor and above the gasoline engine, which small tank furnished the gasoline for immediate use in the operation of said engine by means of an unprotected pipe extending to the engine, where the gasoline was ignited by means of an ordinary burner, to which a match was applied when it was desired to start the engine for the purpose of pumping water."

It is further alleged that this reservoir, in which the gasoline was held, had, by reason of its age and long use, become defective, and a leak resulted, which caused the accumulation of a vapor, or highly explosive gas, in the small room where the engine was situated, and thus created a dangerous situation. The petition then proceeds: "That the said Terry Sirman, on said date, attempted to light the burner of said engine for the purpose of operating same, and that in said attempt there was produced a violent explosion, with a sudden and dangerous flame, which burned the said Terry Sirman, thereby causing his death; that gasoline, used as a fuel for the operation of said engine, is a gaseous and highly combustible substance, and required the exercise of care and prudence and caution in its use and confinement; that it was the duty of the defendant company to exercise ordinary care to provide for its employés, servants, agents, and representatives a safe place, safe machinery, safe reservoir, pipes and tanks, tools and appliances with which to operate its pumping station." The negligence charged is, in substance, the failure of the appellant to use proper care to remedy this alleged defective condition, and its failure to adopt a safer and better method for starting the engine.

Appellant answered by a general demurrer and a general denial, and also pleaded settlement in full for all the damages claimed. In addition to this, appellant further pleaded that Terry Sirman was a volunteer in undertaking to operate the engine at the time he was injured, and that it owed him no duty to keep the premises in a safe condition. The appellee filed a supplemental petition setting forth facts impeaching the fairness of the settlement, and in avoidance of its legal effect. A trial before a jury resulted in a verdict for the appellee for the sum of $8,500, less $150 previously paid at the time the alleged settlement was made.

We shall pass over those assignments of error which assail the rulings of the court relative to the issues presented by the plea of settlement and of contributory negligence, and consider those which involve the right of the appellee to recover any sum under the pleadings and the evidence. The appellant asked for a peremptory charge instructing the jury to return a verdict for the defendant. This was refused, and the court in his main charge submitted the plaintiff's right to recover in the following manner: "Now, if you believe from the evidence, by a preponderance thereof, that, at the time and place stated in plaintiff's petition, the deceased, Terry Sirman, was acting as a volunteer with the consent of the defendant's agent, to help and assist said agent in the running of the pumping station owned by the defendant, and if you believe that, in pursuit of said service, he went into the room of the pumping station and proceeded to light the gasoline engine for the purpose of operating the pump at defendant's water station, and that he was exercising ordinary care in the discharge of such service, and if you further believe that the defendant had negligently permitted the gasoline tank, pipe, and reservoir situated in said pumping station to become old, worn, and defective, so as to permit gasoline to escape therefrom, and which produced within said pumping room a gaseous condition, highly combustible and explosive in character, and that such condition was not known to deceased, and by the exercise of ordinary care could not have been known to him, and if you further believe that he struck a light in attempting to start the gasoline engine, and that he exercised ordinary care in so doing, if he did so, thereby causing an explosion and fire which resulted in the death of the said Terry Sirman, and that the negligence of defendant, if any you find, was the direct and proximate cause of said explosion and consequent death, then you will find for plaintiff, Mrs. J. T. Sirman."

There is little, if any, conflict in the testimony concerning the facts relating to the injury, and the material circumstances connected with it. At the time stated in the petition, the appellant had a depot at the town of Ashland, which was in charge of an agent named Hollinshed. A few yards distant from the building so used was the pump station referred to in the original petition. It was a part of the agent's duty to operate this pump, whenever necessary, for the purpose of supplying the tank with water. It is to be inferred from the record that this was done every day. Hollinshed boarded with the appellee, and was often with her son prior to his death; in fact, they appear to have been on terms of intimate friendship. On August 23, 1911, at about 12:30 o'clock p. m., Hollinshed and Sirman were walking together, going in the direction of the pump, and also of the place where Sirman was employed to work. They had reached a point between the depot building and the pump station, when Hollinshed was called back by some one who wanted freight from the depot. He was at the time on his way to the pump for the purpose of starting it. When he turned back, he said nothing to Sirman about the latter starting the pump for him, nor did Sirman say anything to Hollinshed that indicated that he intended to do so. In a very few minutes after they separated, the explosion occurred which caused the injuries that resulted in the death of Sirman. According to Sirman's ante-mortem statement, after Hollinshed turned back on the occasion mentioned, he (Sirman) concluded that he would go on to the pump station and start the engine himself. He went inside of the pump house, poured some oil or gasoline in the receptacle provided for that purpose, struck a match to light the oil or gasoline, and the explosion occurred. The evidence indicates that this resulted from the accumulation of gas or vapor, due probably to a leak in the pipe or some portion of the reservoir which contained the gasoline. The day was very warm, and the building presumably had been closed. The evidence is sufficient to justify the...