Montrief & Montrief v. Bragg

• Decision Date: 15 February 1928
• Docket Number: (No. 850-4927.)
• Citation: 2 S.W.2d 276
• Parties: MONTRIEF & MONTRIEF v. BRAGG et al.
• Court: Texas Supreme Court

2 S.W.2d 276

MONTRIEF & MONTRIEF v. BRAGG et al.

(No. 850-4927.)

Commission of Appeals of Texas, Section B.

February 15, 1928.

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

Action by Henry Bragg against the Fort Worth Gas Company and Montrief & Montrief. Judgment for plaintiff against both defendants was affirmed by the Court of Civil Appeals (297 S. W. 244), and judgment for defendant Montrief & Montrief over against the Gas Company was set aside, and said defendant Montrief & Montrief brings error. Reversed and remanded.

Thompson & Barwise and B. V. Thompson, all of Fort Worth, for plaintiff in error.

McLean, Scott & Sayers, Capps, Cantey, Hanger & McMahon, and Slay, Simon & Smith, all of Fort Worth, for defendants in error.

LEDDY, J.

Henry Bragg recovered a judgment against the Fort Worth Gas Company and the plaintiffs in error on account of damages sustained by him on November 15, 1924, as a result of an explosion of natural gas in the basement of the Ritz Theater building in the city of Fort Worth.

It appears that plaintiffs in error were engaged in converting a coal burner heating plant into a gas burner heating plant in said theater building, and had left an open pipe extending into the basement through which gas escaped and came in contact with an open fire, resulting in an explosion inflicting the injuries for which damages were awarded. The basis for a recovery was the negligence of the gas company in turning on the gas at a valve in the alley, which had been previously cut off, and as against the plaintiffs in error that they were guilty of negligence in failing to cap the open pipe through which the gas escaped into the basement.

Plaintiffs in error's answer contained a special plea to the effect that the negligent acts and omissions (which were fully particularized) of the Fort Worth Gas Company, its codefendant, were the sole proximate cause of the damages and injuries received by Henry Bragg.

Under such plea, plaintiffs in error seasonably presented to the court its specially requested issues Nos. 1, 2, and 3, which are as follows:

"(1) Was the act of the employee of the defendant Fort Worth Gas Company in turning on the gas on the night of the explosion in question the sole proximate cause of said explosion and the resulting injuries to plaintiffs herein.

"(2) Would a person of ordinary prudence, in turning on the gas at the Fort Worth Gas Company's main on the night of the explosion in question, have anticipated that the explosion and plaintiff's injuries, or some similar injuries, if any, would occur, regardless of whether or not defendants Montrief & Montrief's workman had left the pipe uncapped, through which the gas escaped into the room on the night of the explosion."

"(3a) Was Mr. Stinson, the defendant Fort Worth Gas Company's superintendent, negligent in failing to notify the nightman of the Fort Worth Gas Company, when said nightman came on duty, that defendants Montrief & Montrief were working on the gas lines of the Ritz Theater?

"(b) Was such failure of the said Stinson to notify the said Fort Worth Gas Company's nightman the sole proximate cause of the explosion in question."

All of these issues were refused by the court, and, upon appeal, the honorable Court of Civil Appeals held that the refusal to give such special issues was not reversible error, because the jury, in answer to the several issues submitted by the court, expressly found negligence on the part of each appellant, and that the negligence of each appellant...