Moody v. Gulf Refining Co.

• Decision Date: 05 March 1920
• Parties: MOODY v. GULF REFINING CO. HORN v. GULF REFINING CO.
• Court: Tennessee Supreme Court

218 S.W. 817

142 Tenn. 280

MOODY v. GULF REFINING CO.

HORN v. GULF REFINING CO.

Supreme Court of Tennessee.

March 5, 1920

Certiorari to Court of Civil Appeals.

Actions by J. S. Moody against the Gulf Refining Company, and by J M. Horn against the same defendant. After trial together motion for a directed verdict in favor of plaintiffs was granted, and suits dismissed, and on appeal to the Court of Civil Appeals the judgment was affirmed, and plaintiffs petition for writs of certiorari. Affirmed.

HALL J.

These two actions were brought by the plaintiffs in error, who will be hereinafter referred to as the plaintiffs, to recover damages for loss of property growing out of a fire which is alleged to have resulted from defendant's negligence.

The suits, by consent, were tried together in the court below and upon the conclusion of the evidence a motion for a directed verdict was made by the defendant, and was sustained by the trial judge, and the plaintiffs' suits were dismissed. From this judgment they appealed to the Court of Civil Appeals, where both cases, were, by consent, again heard together, and the judgment of the trial court was affirmed. The cases are now before this court upon petitions for writs of certiorari.

The material facts are undisputed, and, briefly stated, are as follows: The defendant is a wholesale dealer in oils and gasoline, and in conducting its business in the city of Nashville, Tenn., maintained a large warehouse fronting on the Tennessee Central Railroad at a point near where said railroad crosses Twenty-Fifth avenue, at which it received the commodities handled by it. It received large quantities of gasoline from railroad tank cars, the contents of which were pumped from the cars into storage tanks situated on the defendant's warehouse premises. These tank cars were delivered to its premises by the railroad company by means of a switch or side track extending from its main line from a point west of where it intersected with Twenty-Fifth avenue to and by the defendant's warehouse premises.

The fire that destroyed the property belonging to plaintiffs originated on this side track in front of defendant's warehouse, and destroyed defendant's warehouse and a large quantity of merchandise stored therein, and from the defendant's premises traveled or was carried by the wind to the premises of the plaintiffs, igniting the houses occupied by them, and destroyed the property, the value of which is sought to be recovered in these actions.

The declarations charged that the defendant maintained its premises in a negligent and dangerous condition, in that it permitted quantities of gasoline and oil to escape or to be spilled on its premises to such extent that the floor and other timbers of the warehouse had become soaked with oil and gasoline; that the ties of the side track were also soaked with oil and gasoline and other inflammable substances, and that oil and gasoline and other inflammable substances were permitted by defendant to accumulate "in puddles and streams" on its said premises; that defendant negligently handled its stock of gasoline and spilled same adjacent to the public highway in a thickly populated part of the city of Nashville, where many men, women, and children were in the habit of walking and playing; that the gasoline was left unguarded to such an extent that the public safety was endangered, and the premises of the defendant had become a public nuisance; that on the date of the fire while some boys were smoking and lighting matches on or near the premises of the defendant, which fact was known to defendant's employé, the gasoline took fire from the act of said boys in lighting matches, or some other act committed by them, "either accidentally or in play, or from some other cause"; and that the flames from same extended into the warehouse of the defendant, from which it was communicated from the premises of the defendant to the premises of the plaintiffs.

The evidence shows that at the time of the fire the defendant was engaged in unloading or preparing to unload, a tank car of gasoline, which stood on the side track in front of its warehouse, located only a few feet from the side track. These tank cars consist of large long metal tanks built on railroad trucks, and are ______ feet in length, ______ feet in diameter, and some of them hold several thousand gallons of gasoline. On the top of these tanks, and about the center of the same, is what is called a dome, which is about 18 inches in diameter, and extends some distance above the top of the tank. In the top of this dome is an opening in which a large cap is fitted to close the opening, and at the bottom of the tank, and about the center of the same, is a spout or leg which extends below the body of the tank. The dome is used in loading the car with gasoline, and for any and all purposes where it is necessary to enter the tank, and the leg is used in unloading the car. On the inside of the tank, and just about the point where the leg connects with the bottom of the tank, is a valve, and from this valve a rod runs up into the dome, and to the top of this rod is attached an arm or lever, and when it is desired to prevent the gasoline from escaping through the leg, the valve, by means of this rod or arm, is tightly closed. When it is desired to empty the car through the leg, the valve is opened by means of the rod extending therefrom into the dome. The tank is unloaded by connecting a hose with the valve in the leg of the tank and pumping the gasoline from the tank into the storage tank, which is located near by.

Two of the defendant's employés had gone on top of the tank car, removed the top from the dome, measured the distance between the bottom of the dome and the top of the gasoline in the car, and had taken the temperature of the gasoline, which was the usual and customary procedure before unloading it. The rod which led through the car to the valve over the leg was examined to ascertain if it were properly stated or closed so as to prevent the passage of gasoline into the leg when it was opened for the purpose of attaching to the valve the hose preparatory to pumping the contents of the car into the storage tank.

The evidence shows that during the transportation of the car the movement of the gasoline on the inside of the tank washes the sides thereof, and any impurities that may be in the gasoline will, when the car is stopped and permitted to stand for a while, sink to the bottom of the tank, and if the valve in the leg is not tightly closed such impurities will escape into the leg, as will the gasoline. It further appears that, however much care is exercised in loading the tank car, and in closing the valve in the leg, foreign substances will sometimes get in the way of the valve and it will not close tightly, and gasoline will flow from the tank into the leg. In unloading it is the custom to open the leg by unscrewing and removing the plug in the lower end, and catch the contents of the leg into a vessel or tub, and then attach the hose, by means of which the gasoline is transferred to the storage tank.

At the time of the fire in question a colored employé of the defendant, who was experienced in unloading gasoline from the tank cars, went to the car in question, unscrewed the plug at the lower end of the leg, and placed under it a large tub for the purpose of catching whatever gasoline and other substance that might flow from said leg; and about the time he placed the tub in position and unscrewed the plug an employé of the Nashville Railway & Light Company, who, together with other employés of that company, were digging a hole for an electric light pole across the main line of the railroad company, and about 30 feet from the tank car, informed the employé of the defendant that they were preparing to "shoot," meaning that they were going to set off a blast for the purpose of breaking some rock in said post hole. The defendant's employé, believing that he was in dangerous proximity to the blast which was about to be fired, and having no other means of protection, left the leg from which gasoline was then flowing into the tub and ran around the end of the car to protect himself from the blast. Upon the blast being fired he returned to the leg and found that a sufficient quantity of gasoline had run into the tub to overflow it, and that some of the gasoline was running out of the tub on to the ground. He immediately replaced the plug in the leg to stop the flow of the gasoline. He says that while he was performing this operation some boys, who were standing upon the main track of the railroad about 6 feet away, asked him if it were gasoline or coal oil that was flowing into the tub, to which inquiry defendant's employé says that he told them that it was gasoline.

The undisputed evidence further shows that after defendant's employé had stopped the flow of the gasoline he went into the warehouse for the purpose of getting some...