Raphael Bros. v. Cerophyl Laboratories

• Decision Date: 10 February 1947
• Docket Number: 38186.
• Citation: 211 La. 354,30 So.2d 116
• Court: Louisiana Supreme Court
• Parties: RAPHAEL BROTHERS v. CEROPHYL LABORATORIES, Inc.

30 So.2d 116

211 La. 354

RAPHAEL BROTHERS v. CEROPHYL LABORATORIES, Inc.

No. 38186.

Supreme Court of Louisiana

February 10, 1947

Rehearing Denied March 17, 1947.

Appeal from First Judicial District Court, Parish of Caddo; James U. Galloway, Judge.

Cook, Clark & Egan, of Shreveport, for defendant and appellant.

Booth Lockard & Jack and Turner B. Morgan, all of Shreveport for plaintiff and appellee.

FOURNET Justice.

The defendant, Cerophyl Laboratories, Inc., is appealing from a judgment against it in tort for the loss of the plaintiff's trailer, equipment, and cargo of chickens totally destroyed as the result of the alleged negligence of the defendant in laying a high pressure three-inch gas pipe line servicing its dehydrating plant near Gilliam, Louisiana.

It appears that the plaintiff, Raphael Brothers, a New Orleans partnership, in the course of its regular business as a wholesale and retail poultry dealer, sent an agent to Arkansas for the purpose of purchasing a load of chickens.The agent made the trip in the plaintiff's trailer-truck manned by its driver.In returning to Louisiana from this trip in the early morning hours just before dawn, the driver, travelling on HighwayNo. 71, with which he was unfamiliar, passed the regular detour (designated by an arrow only) and, continuing down the road, turned to the left upon reaching the end of the concrete for the purpose of negotiating the turn into the detour at the end of the concrete to reach a black-top highway paralleling the concrete one only a short distance away.As he turned he struck a three-inch pipe line lying exposed in a ditch running along the concrete highway.He struck this pipe line at a place where it entered a shallow culvert forming a bridge over the ditch between the highway and the detour road, causing the pipe line to break and to immediately ignite, by reason of the escaping gas, the trailer and cargo and to totally destroy it, despite the driver's efforts to pull the trailer out of the ditch.The cab or tractor of the trailer-truck was only saved by its hasty uncoupling from the trailer by the plaintiff's agent.

For specific cause of action the plaintiff alleged that the defendant's negligence consists of the laying of this line with secondhand piping in the shallow ditch paralleling the concrete highway and passing it through the culvert lying in the ditch, and over which the entrance to the detour road was constructed, with full knowledge of the narrowness of the culvert and this detour road at the point where it connects with the concrete highway, the shallow depth to which it was laid, and its exposed condition for some two feet at each end of the culvert, all in violation of the regulations of the state highway department, without taking into account the likelihood

that vehicles crossing over this culvert to enter the detour road would slide or be driven off the end of the culvert and strike this exposed portion of the pipe line, causing it to break, with the probability that the escaping gas would be ignited by the running motor of the vehicle or the exhaust.

The defendant generally denied the allegations of negligence in laying the pipe line and specifically averred that the loss was the result of the dangerous and rapid manner in which the driver of the truck turned into the detour road, and, in the alternative, pleaded the contributory negligence of the driver of the truck carrying the trailer.

The trial judge in rendering judgment in favor of the plaintiff fixed the value of the trailer at $1,200, the value of two extra truck tires at $180, the expenses of the trip at $100, and the value of the chickens and coops at $3,493.03, or a total of $4,973.03, with legal interest from judicial demand.

We think the preponderance of the evidence shows, as found by the trial judge, that the pipe line was laid as alleged by the plaintiff in its petition and that the plaintiff's driver, who was unfamiliar with Route 71, upon observing the detour sign at the end of the concrete highway stopped his truck and undertook to negotiate the turn into the narrow detour road in low gear and that in doing so, as expressed by the trial judge, he'either missed or slid off the North end of the culvert and then struck the pipe, breaking it, and a spark, either from the exhaust or from metal striking metal, ignited the gas released from its 30 or 35 pounds of pressure within the pipe,' resulting in the loss of the trailer, equipment, and cargo, the value of which, as fixed by the trial court, is not questioned.

This presents for our consideration, therefore, the question of (1) whether or not the manner in which the pipe was laid by the defendant constituted negligence, in that it was so constructed that the defendant foresaw or should have foreseen the dangerous potentialities of its instrumentality; and (2) whether there was negligence on the part of the driver contributing to the loss.

In determining the first issue the trial judge very aptly pointed out in his written reasons for judgment that 'Natural gas, because of its highly inflammable and explosive character, is an inherently dangerous instrumentality.Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character and necessary to protect the public from any foreseeable injury therefrom.'See, Jackson v. Texas Co., 143 La. 21, 78 So. 137, L.R.A.1918D, 150.He stated further that 'Considering the location of this high pressure gas pipe line, its proximity to the highway, the manner of laying it through the shallow culvert, projecting it out the North end of the culvert exposed, in the face of the fact that said end was observed to be crumpled and bent from repeated striking by traffic, the failure to protect said pipe from the hammering blows of traffic or to warn of its presence and defendant's failure to comprehend the probable consequences of this obviously dangerous situation,'he could not escape the conclusion 'that plaintiff's allegations of defendant's negligence were fully justified and have been abundantly proved.'

We concur in the trial judge's conclusions of law for it is the general rule that when roads and highways dedicated and designated for public use are used by individuals for their own convenience and accommodation, such individuals become liable for all damages sustained as the consequence of their improper use or appropriation of these public thoroughfares, and this is true even though that portion used by the individual is outside the way generally travelled by the public.Indiana Natural & Illuminating Gas Co. v. McMath, 26 Ind.App. 154, 57 N.E. 593;Opdycke v. Public Service Ry. Co., 78 N.J.L. 576, 76 A. 1032, 29 L.R.A.,N.S., 71;O'Hanlin v. Carter Oil Co., 54 W.Va. 510, 46 S.E. 565, 66 L.R.A. 893;Thompson v. Union Traction Co., 103 Kan. 104, 172 P. 990;andCarlson v. Mid-Continent Development Co., 103 Kan. 464, 173 P. 910, L.R.A.1918F, 318.This is particularly true when the appropriation of such highway or road consists in the unauthorized and improper construction of a pipe line for the transportaion of gas, a highly dangerous and inflammable substance ladened with instantaneous explosive potentialities.McWilliams v. Kentucky Heating Company, 166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224;Mullins v. United Carbon Co., 282 Ky. 111, 137 S.W.2d 1089;Murphy v. Ludowici Gas & Oil Co., 96 Kan. 321, 150 P. 581;and 24 Am.Jur. 621, �� 133, 135, and 139.

In the course of the opinion in the Mullins case[282 Ky. 111, 137 S.W.2d 1090]the court pointed out that 'The general law relating to negligence in laying a pipe line is thus comprehensively stated in Willis' Thornton on Oil and Gas, Section 1173: 'The improper laying of a gas line such as not properly supporting it in loose and shifting soil, is an act of negligence, and if for that reason it breaks and an explosion caused by leakage inflicts injury to one not contributorily negligent,...