Producers' Oil Co. v. Bush

• Decision Date: 20 March 1913
• Citation: 155 S.W. 1032
• Parties: PRODUCERS' OIL CO. v. BUSH et al.
• Court: Texas Court of Appeals

155 S.W. 1032

PRODUCERS' OIL CO. v. BUSH et al.

Court of Civil Appeals of Texas. El Paso.

March 20, 1913.

Rehearing Denied April 24, 1913.

Error to District Court, Harris County; J. A. Read, Special Judge.

Action by Lenora Bush and another against the Producers' Oil Company. From a judgment for plaintiffs, defendant brings error. Reversed, and rendered for defendant.

Jas. L. Autry, Robt. A. John, and Hutcheson & Hutcheson, all of Houston, for plaintiff in error. John Lovejoy and J. W. Parker, both of Houston, for defendants in error.

McKENZIE, J.

Plaintiffs, Lenora Bush and Julia Rossie Bush, minor, brought this suit against the Producers' Oil Company and the Texas Company to recover damages for the death of the husband and father, respectively, of plaintiffs. The amended petition upon which the trial was had charges, in substance, that the appellant was a private corporation of the state of Texas, engaged in the business of prospecting for and developing petroleum oil in Humble, Tex.; that while said Bush was in the discharge of his duty as helper, working for the defendant, he was poisoned by inhaling gases, and as a consequence thereof died; that Hessig, with whom plaintiffs' decedent was working at the time of his death, was foreman of the work, and had been given the authority to employ and discharge helpers, which constituted him a vice principal of the defendant in the work of drilling wells; that defendant knew, or should have known, that poisonous gases would escape from the well being drilled, and that such gases were dangerous, and that that portion of the Humble oil field in which the well was being drilled contained an extraordinary amount of gases which were unusually poisonous and dangerous; that persons and corporations engaged in the business of boring wells for petroleum oil of the said field and in the other fields of the said state and elsewhere, and especially in the locality where the said well was being drilled, for the purpose of safeguarding the lives of their employés, use and have customarily connected with the wells pipe or pipes to convey the gases escaping from the wells far enough away so that they would not come in contact with the men or would mix steam therewith so as to render the same innocuous, and that, when a well was known to be producing gas in sufficient quantities to endanger a human life, the foreman of the men engaged in the work of drilling would give notice to the men of such a fact, to the end that they might protect themselves against injury therefrom, and the duty to pipe away the gas or to otherwise get rid of same, and to give warning, as aforesaid, was one which rested on the owner or proprietor, and, in this case, was a duty of the defendant and its said vice principal; that it knew that the well was not provided with such means, and knew or ought to have known that dangerous gases would escape, and that Bush was inexperienced in the work of drilling, and was ignorant of danger incident thereto, and was especially ignorant of the increased danger on account of unusual gases in that part of the field; that the death of Bush was caused proximately by the carelessness and negligence of defendant and of its vice principal, Hessig, in that having knowledge of the danger it did not provide against or give Bush timely warning. The appellant answered by general demurrer, general denial, and specially pleaded the defenses of contributory negligence and assumed risk, and negligence of fellow servant, the risk of which was assumed by the decedent. During the progress of the trial, the Texas Company, having been made a party defendant, was dismissed from the suit by plaintiff. Upon trial the jury found verdict for appellees in the sum of $12,500, and judgment was accordingly entered against appellant for that amount, from which judgment the appeal is taken.

Because of the disposition to be made of this appeal, we quote at length the material testimony of the witnesses bearing upon the issues upon which we predicate our opinion.

George Hessig, the only eyewitness of the accident, testified for the plaintiff in substance as follows: "Am 45 years old, and reside at Humble, Tex. Am an oil well driller and have followed that occupation for 25 years, and have worked in the oil fields in every state in the Union where there are or have been oil fields of importance, following that occupation. Have been in the employ of the Producers' Oil Company about 14 months. Have worked in drilling wells both as helper and driller or foreman. Altogether I have worked about five years as helper and the other time as driller. In my operation in oil fields I have had experience with gas in drilling wells, as a man would ordinarily have that has been in the business as long as I have. I have had much experience with gas, and am familiar with the indications which show the presence of gas in a well being drilled, and I am familiar with the effects of gas upon persons working at or around wells from which gas escapes. * * * The manner in which gas is indicated in wells is this: The gas rises to the surface out of the wells, and you can see the gas and smell it. If the volume is pretty large, you can see the gas for several hundred feet and can smell it that far; it all depends on the volume of the gas. If any gas is escaping from a well that would be at all dangerous to those working around it, it can be seen with the eye in the daytime and smelled. I have also heard in a number of wells the gas escaping. There is no other way that I know of by which gas can be indicated in a well, except by seeing, smelling, or hearing it. If gas is in a well in a dangerous quantity to those working at or around the well, it can be smelled. A very small amount of gas in a well can be detected by the smell. Gas makes its escape from wells in this manner: It rises to the surface, sometimes through the pipes and sometimes around the pipes. In Texas fields, especially at Humble, when casing is used, it nearly always comes out through the pipes or casing, unless it is a very strong volume when it may come out around the pipe, or even below the pipe out. As a general rule gas appears in a well suddenly, and frequently increases in volume after making its appearance. The moment you strike gas it begins to rise to the surface, and the more the volume of gas the quicker it comes out. The effect upon persons coming in contact with gas escaping from wells depends upon the volume of the escaping gas, the suddenness it comes out and the kind of escaping gas. Some kinds of gas in large volumes you can work around all right, and other gas, or gas in other wells will put you out. I mean that a man breathing it would become unconscious almost instantly. Different wells in the same fields very often give forth a different kind of gas, some very dangerous and some not. From my experience in drilling wells in which gas has appeared, and from my operations in same, the appliance generally used for the purpose of avoiding danger to those employed in and about the well for the escape of gas is what is known as a jet. A jet is a piece of pipe connecting to the top of a casing in a well, extending out to the side of the well to a distance. The distance it extends will depend upon the volume and dangerousness of the gas. This jet is connected to a steam line, and the steam draws the gas out through the jet. * * * Where I have used it and seen it used, it has proven satisfactory, and will take the gas away from the well. I am familiar with the use of such appliances and the necessity for their use and the indications of the necessity of their use as a precaution to avoid danger. The Producers' Oil Company during the time I worked for them had available for use such appliances * * * for the prevention of the escape of gas in a dangerous way. I was acquainted with this fact. Such appliances could have been gotten by me and used by me whenever I desired by getting them from the warehouse at Humble of the Producers' Oil Company. I did know Tom Bush. * * * I first met him about two days before his death, when he came to help me at night on a well at Humble. I only knew him about two days before his death. He had been my helper in the work of drilling wells only one or two nights prior to the night he was killed. I was foreman of the drilling crew, and he was my helper. Tom Bush and I alone constituted the drilling crew on well No. 109, which was being drilled with cable tools on the night of January 3, 1909, for the Producers' Oil Company. We commenced to work about 7 o'clock at night. At the time we began to work that night we began to side track the bit which had been broken off in the bottom of the hole a day or two before that. I mean by side tracking the bit putting on another bit to the cable tools and drilling on by the bit which was broken off. The hole was making some gas. I am now referring to well 109. * * * I did not consider that the gas was of such character and amount as to be dangerous to work around. On account of the bit being broken off in the well, our drilling was very slow; that is, we couldn't make much proggress. The well was down about 1120 some odd feet at that time, to the best of my remembrance. It had been making a little gas the night before when we quit work, and the gas had increased during the following day a little, while the other crew was working. * * * There was nothing unusual about our work in drilling, and we were just doing the ordinary routine of work in drilling an oil well. I was working all the time close to the hole handling the temper screw which controls and regulates the drilling or cable tools. Tom Bush was looking after the machinery and the rig, which was his duty. We were drilling along on the well that way, making pretty poor progress all the time, until he was killed. Of course, we stopped for the noon hour at night. That night was the second or third night we had worked...