Prairie Pipe Line Co. v. Dalton

• Decision Date: 15 April 1922
• Docket Number: (No. 9945.)
• Citation: 243 S.W. 619
• Court: Texas Court of Appeals
• Parties: PRAIRIE PIPE LINE CO. v. DALTON.<SMALL><SUP>*</SUP></SMALL>

Page 619

243 S.W. 619

PRAIRIE PIPE LINE CO. v. DALTON.^*

(No. 9945.)

Court of Civil Appeals of Texas. Fort Worth.

April 15, 1922.

Rehearing Denied May 27, 1922.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Suit by G. L. Dalton against the Prairie Pipe Line Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellant.

Penix, Miller, Perkins & Dean, of Graham, for appellee.

BUCK, J.

G. L. Dalton, on September 24, 1920, filed this suit against the Prairie Pipe Line Company, a corporation, hereinafter called defendant. In his amended petition he alleged:

That defendant maintained and operated a pipe line through which it transported petroleum oil obtained in Eastland, Stephens, and Palo Pinto counties, and that said pipe line passed over and near lands leased by plaintiff and used as a pasture, specially about 800 acres known as the Cuteman pasture, situated about four miles northwest of the town of Palo Pinto, in Palo Pinto county. That plaintiff had been raising stock cattle and steers thereon, which fact was well known to the defendant. That through said premises ran Eagle creek, and that defendant's pipe line crossed said creek approximately 150 yards above and south of the premises leased by plaintiff. That defendant "negligently and carelessly and improperly constructed and put together its said pipe line over and across a large hole of water in said creek about 150 yards south of the premises occupied by the plaintiff. That in constructing its pipe line across said creek it failed to bury its pipe line under ground, and left same above the bottom of said creek, and that same became leaky where it crossed said creek underneath the water therein and above the bed thereof. That said pipe line was so constructed as to receive the force of flood water and to be weakened from natural weight and by pressure from oil passing through same, and in other ways unknown to plaintiff, and that said pipe line was negligently and carelessly permitted to emit oil therefrom and pollute the water of Eagle creek, which passed through plaintiff's said pasture, and that on account of the negligence of defendant in constructing and putting together said line it became broken and leaky, and permitted oil to escape therefrom into Eagle creek aforesaid. That plaintiff called defendant's and its servants' and employés' attention to the leaky condition of said pipe, and the defendant knew at all times hereinafter mentioned of the leaky condition of the pipe, and knew that same was leaking and emitting oil from the month of March, 1920, until the month of August, 1920, but carelessly and negligently permitted said pipe line to continue to leak oil therefrom during all of said time into said creek."

He further alleged: That said oil so escaped, polluted, and poisoned the water and made it unfit for stock to drink. That he lost 16 head of steers from drinking said oil on the water aforesaid, 15 of which were two year old steers of the reasonable market value of $75 per head, and the other was a three year old steer of the reasonable market value of $100. That 7 head of the two year old steers which also drank the water so polluted, about July 5, 1920, were sickened and poisoned to such an extent that they have not recovered therefrom, and are damaged in the sum of $40 per head. That 127 head of other cattle in his pasture drank said oil and were damaged thereby $5 per head.

The cause was tried before a jury on special issues, and the jury found:

(1) That defendant was negligent in the construction and maintenance of its pipe line across Eagle creek in such manner, as alleged by plaintiff, as to cause and permit crude oil to escape from the pipe line into the waters of said creek and pollute or poison its water.

(2) That said negligence was the proximate cause of the death and injury to plaintiff's cattle, as alleged in his petition.

(3) That plaintiff's damages were $1,140, for the 16 head of cattle killed, and $460 for those injured, but not killed.

The trial court entered a judgment for plaintiff for $1,600, and the defendant has appealed.

The evidence showed that the plaintiff during the early part of 1920 had under lease three pastures known as the Cuteman pasture, the Wade pasture, and the Taylor pasture, that the lease on the Wade pasture, which lay between the other two, expired April 1, 1920, and that he removed his cattle therefrom some time the latter part of May of that year, but that the gates connecting the Wade pasture with the other pastures were left open a good deal, and that some of plaintiff's cattle got back into the Wade pasture after his lease had expired, and that on or about July 5, 1920, he noticed some of his steers in the Wade pasture drinking the water out of Eagle creek, upon which there was considerable oil, and that such steers, together with others not in the Wade pasture which also drank water with oil on it, died therefrom.

Appellant's first proposition is that it is not liable for any cattle which were injured or died from drinking water with oil on it in the Wade pasture; that the cattle were trespassers in the Wade pasture, and that defendant owed no duty to the plaintiff arising out of the condition of the pipe line in the Wade pasture. In support of this contention, appellant cites McCutcheon v. Grosline, 39 Tex. Civ. App. 146, 86 S. W. 1044; Morrison v. Cornelius, 63 N. C. 346. 29 Cyc. pages 442 and 444; 3 Corpus Juris, page 151. These authorities hold that where plaintiff's animals are trespassers on defendant's premises, and are injured while thereon by falling into an excavation, a hole, or otherwise, defendant is liable only where it is shown that he was guilty of gross negligence. But the appellant in this case was not the owner of the Wade pasture, and is in no position to invoke the rule above noted. Only the one who had the right of control of the premises would be in a position to urge such defense. The assignment is overruled.

It is urged in another assignment that the court erred in submitting to the jury the matter of maintenance of the pipe line in controversy, because there was no sufficient allegation of negligence in the maintenance to authorize such a submission. We think the allegations of negligence in the maintenance of the pipe line are sufficient to justify the introduction of testimony thereon and the submission of the question to jury.

Under the third, fourth, and fifth propositions, and under assignment 3, complaint is made that the court erred in submitting issue No. 4 to the jury. This issue is as follows:

"What sum of money paid now do you find to be the damage to such of plaintiff's cattle, if any, as were made sick and injured by drinking water and oil from said creek, if you find that any of said cattle were made sick by drinking the oil and water from said creek?"

It is urged that there is no proper testimony in the statement of facts establishing the measure of damages here inquired about. That as to the cattle which were alleged to be injured by drinking the oil on the water, it is urged that proof is necessary as to this character of damages to show the difference between what was the reasonable market value of the cattle immediately before they drank the mixture and immediately thereafter. Dalton's testimony showed that 35 head of his cattle drank the oil,...