McMurry v. The Prairie Oil and Gas Company

Decision Date20 December 1911
Citation141 S.W. 463,159 Mo.App. 623
CourtKansas Court of Appeals

Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.


Judge Cates, Joseph Park, Smoot & Cooley and J. M. Payne for appellant.

Negligence cannot be presumed from the fact of an accident and resulting injury. Yarnell v. Railroad, 113 Mo. 570, 580 and cases cited; Schaffer v. Railroad, 128 Mo. 64, 71 72; Railroad v. MacKinney, 135 Pa. St. 462; s. c 37, A. & E. R. R. Cas. (O. S.) 152, 158. Burden of proof always on plaintiff. Schaffer v. Railroad, 128 Mo 64, 71-72; Railroad v. MacKinney, 135 Pa. St. 402 s. c. 37, A. & R. (O. S.) 152, 158, (17 A. 14); Curtis v. Railroad, 18 N.Y. 534; Transportation Co. v. Dawson, 11 Wall. 129; Yarnell v. Railroad, 113 Mo. 570; Railroad v. Kuhn, 6 S.W. (Ky.) 441, 444. It is the settled rule in Missouri that where the petition specifies the particular act of negligence, the petitioner must be restricted to this act. Pryor v. Railroad, 85 Mo. 378; Jacquin v. Railroad, 57 Mo.App. 320; Hite v. Railroad, 130 Mo. 132; Bartley v. Railroad, 148 Mo. 124; McName v. Railroad, 135 Mo. 440; Kennedy v. Railroad, 107 S.W. 16, 128 Mo.App. 297; Bever v. Railroad (Mo.), 111 S.W. 57, 58 (1908). The trial must be limited to proper issues, and any instruction outside of such issues is error. Respondent should have been restricted to the issues made by the pleadings. Whippe v. Peter Cooper B. & L. Ass'n, 55 Mo.App. 554, 558; Roscoe v. Railroad, 202 Mo. 576, 587; Link v. Vaughn, 17 Mo. 585; Ensworth v. Barton, 60 Mo. 511.

N. N. Pettingill and John T. Barker for respondent.

(1) Where there is negligence concurring with an "act of God," and but for such negligence the injury would not have occurred, the person guilty of such negligence is liable. Brush v. St. Louis, 161 Mo. 433; Standley v. Railroad, 121 Mo.App. 537; Harrison v. Light Co., 195 Mo. 606; Newcomb v. Railroad, 169 Mo. 409; Scharff v. Company, 115 Mo.App. 157; Smith v. Fordyce, 190 Mo. 1. (2) Plaintiff asked no instruction on the measure of damages. If defendant wanted such an instruction, it should have asked it. Long v. Nute, 123 Mo.App. 204; Wilson v. Railroad, 122 Mo.App. 667; O'Leary v. Kansas City, 127 Mo.App. 77; Gamachee v. Metal Co., 116 Mo.App. 597; Flaherty v. Transit Co., 207 Mo. 318; Brown v. Printing Co., 213 Mo. 611. (3) Defendant permitted this pipe to remain in the bed of a creek three or four years without an inspection, when it knew the channel of the creek changed each year and that holes would be washed under the pipe. This was negligence. Kaiser v. Suppe, 133 Mo.App. 19; Markey v. Railroad, 185 Mo. 348; Siebrecht v. Gas Co., 47 N.Y.S. 262; Brennan Con. Co. v. Cumberland, 15 L.R.A. (N.S.) 435. (4) Defendant oil company should have kept its oil in its own pipes. It is liable for an injury done by reason of the oil escaping from such pipes. Brennan Con. Co. v. Cumberland, 15 L.R.A. (N.S.) 535; Langabaugh v. Anderson, 62 L.R.A. 948; Kinnaird v. Oil Co., 89 Ky. 468, 12 S.W. 938; Berger v. Gas Co., 60 Minn. 301, 62 N.W. 336; Brady v. Steel Co., 102 Mich. 277, 60 N.W. 687. The verdict in this case was for the right party and should not be disturbed. Where justice has been done, appellate courts will not interfere. R. S. 1909, sec. 2082; Atkins v. Grain Co., 130 Mo. App., 547; Huff v. Railroad, 213 Mo. 495.



This is an action to recover damages on the ground of the alleged negligence of defendant whereby plaintiff's growing crop of corn was injured by reason of petroleum escaping from the former's transportation pipe line. There are several specific allegations of negligence in the petition among which is the following; that defendant failed to strengthen said pipes at the joints with clamps. Others equally as specific were assigned but as they were not sustained by the evidence it is unnecessary to give them.

The defendant is a pipe line company carrying crude oil from the oil fields of Kansas to points in the east to be refined. At the point in controversy it has its pipes laid along the right of way of the Santa Fe Railway and plaintiff's land is situated just south of this right of way. A stream called the Fabius river runs under the railroad track and through plaintiff's land in its downward course. The plaintiff's crop of corn alleged to have been injured is about two miles below the point where defendant's pipe line crosses said stream. This pipe line is made of steel tubing, eight inches in diameter and three-eighths of an inch in thickness. The ends of the pipe are threaded with eighteen threads to the inches, and the threads are cut back from the ends of the pipe three inches. A collar about six inches in length is put on one end of each section of the pipes, which are from eighteen to twenty-five feet in length, and the end of the next section is screwed into this collar which is also threaded. The collar is of the same thickness as the pipe. By this means a continuous line of pipe is constructed. The pipes are laid about one and one-half feet under the ground, except where they cross under streams. In crossing the Fabius river the excavation was deepened at the angle of the banks to decrease the curve of the line in reaching the bed of the stream where the pipe was buried in the ground about two and onehalf feet. It was shown that defendant in constructing its line on the bottom of some rivers, in order to secure the pipe against danger of being broken from the flow of water, used clamps at the joints in the pipe. By the use of these clamps the joints in the pipes, which were the weakest points in the line, were made as strong as the other parts of the pipes. The river in question was small and during the dry weather of the summer ceased to become a running stream. But when excessive rains occurred its banks overflowed and covered the lowlands both above and below the railroad bridge and pipe line, and the force of the water in the channel frequently changed the character of the bottom leaving what is called wash outs.

In May, 1908, the river was swollen by an unusual flood and the water overflowed the lowlands and the pipe line broke in the middle of the channel which permitted the oil to escape and spread upon the water. There was evidence to the effect, however, that the overflow did not exceed others that occurred previously. Plaintiff's evidence tended to show that many thousand gallons of oil escaped and when the water subsided in a few days, it left "a black, slimy coat" of oil all over the lowlands on plaintiff's farm destroying his crops and injuring his land; that defendant's agents who constructed the pipe line were familiar with the river and knew that it was liable to overflow at any time.

The charge of negligence is that defendant failed to properly construct and maintain the pipe line at the place in question.

The line had been constructed about three years prior to the time in question, during which defendant had given reasonable inspection except to that part of the line in question which it had failed to inspect at any time since its construction. It was shown that the earth had been washed from over and under the pipe for a distance of about thirty feet, and that it was broken by reason of its exposure to the force of the current of water. There was evidence also tending to show if a proper inspection had been made and proper precaution exercised in all probability the pipe line would not have separated at the time it did.

Plaintiff was asked if he was the owner of the land upon which the crop was destroyed. Defendant objected to the competency of the question which the court overruled, and he testified that he was the owner.

There was also objection made at one time to the manner in which plaintiff was attempting to prove his damages, but much other evidence of the same character was offered without any objection whatever.

The defendant's evidence tended to show that the amount of oil alleged by plaintiff to have escaped was greatly exaggerated; that the amount that reached plaintiff's farm was not sufficient to injure his crops; and that whatever injury they sustained was caused by the overflow of water.

It is insisted by defendant that the plaintiff failed to make out a case and that, therefore, the court erred in refusing its demurrer to plaintiff's evidence. It is contended, first that the flood which caused the injury being the act of God de...

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