Skelly Oil Co. v. Johnston

• Decision Date: 05 May 1941
• Docket Number: No. 5300.,5300.
• Citation: 151 S.W.2d 863
• Parties: SKELLY OIL CO. v. JOHNSTON.
• Court: Texas Court of Appeals

151 S.W.2d 863

SKELLY OIL CO. v. JOHNSTON.

No. 5300.

Court of Civil Appeals of Texas. Amarillo.

May 5, 1941.

Rehearing Denied June 2, 1941.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Action by S. H. Johnston against the Skelly Oil Company for personal injuries and damage to automobile allegedly sustained in an automobile accident. From a judgment for the plaintiff, the defendant appeals.

Affirmed as reformed.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.

Stennis & Osborne, of Pampa, for appellee.

STOKES, Justice.

This is a common law action for damages filed by appellee against appellant, in which he sought to recover damages for personal injuries and damage to his automobile which he alleges he sustained in an accident upon the highway. The record shows that for a number of years prior to the accident, which happened November 29, 1939, appellant had maintained a gasoline manufacturing plant near a public road a few miles west of Pampa, in Gray County. In connection with its plant, appellant maintained two or more cooling towers which were used to cool water which had passed through its engines as cooling agencies for its machinery in order that the same water may again be used for a like purpose. The towers were constructed so that the hot water from the engines was conveyed into perforated pipes and through the holes in the pipes it was sprayed out into the cooling towers which were some thirty or thirty-five feet in height. Portions of the walls of the cooling towers were constructed of baffle boards through which air and wind passed and the water was cooled by contact with the air and wind. On occasions when the wind was strong the water would be blown through the openings between the baffle boards and driven in the direction in which the wind was blowing. These towers were located thirty or forty feet west of the road which appellee traveled in going from his home at Pampa to his work at the Stanolind Oil Company's plant which was located a few miles north of appellant's manufacturing plant. The testimony shows that when the wind was from the west, water would be blown from the cooling towers onto the road east of the towers and for a number of years wet places had thus been created which amounted at times to mud holes and made it difficult to drive an automobile past the towers on the dirt road. Some two or three years before the accident in question the county authorities surfaced the dirt road with oil, which was customary in such localities, thus equipping it with a hard surface. The color of the road after being surfaced with oil was dark and its surface smooth. On the night preceding the accident there had been a dew or fog which created a sheen and made it difficult to distinguish wet places, or places where water had been thrown or blown thereon, from those portions of the surface affected only by the light dew or fog. The material used to surface this particular road and the smoothness of its surface caused it to be more slippery when wet than it would have been if surfaced with other road materials. Appellee testified that he had traveled this road to his work for quite a long time and had frequently encountered a wet, slippery condition on the road immediately east of appellant's cooling towers. He said that about eight o'clock on the morning of the accident, as was his custom, he retarded the speed of his automobile in passing the cooling towers, anticipating that he might encounter a wet, slick place on the road, but, not observing such condition, he accelerated his speed after passing the towers and immediately his car skidded for some distance, finally leaving the pavement and overturning in a wheat field some six hundred feet north of the cooling towers. The accident resulted in serious personal injuries to appellee and considerable damage to his automobile.

The case was submitted to a jury upon special issues and upon the verdict returned by the jury in answer thereto the court rendered judgment in favor of appellee for $1,785, consisting of $1,300 for personal injuries, $125 for hospital and medical services, and $360 for damages to his automobile. Appellant filed and urged a motion for a new trial, which was overruled, and it duly excepted to the judgment, gave notice of appeal, and has brought the case to this court for review.

The case is presented here upon appropriate assignments of error and propositions of law in which appellant contends the judgment should be reversed, first, because under the testimony and certain findings of the jury, it is not liable to appellee as a matter of law, secondly, because it is shown by the record that appellee was guilty of contributory negligence which precludes his recovering anything of appellant, and thirdly, because the court committed reversible error in the manner and form, in certain particulars, in which the case was submitted to the jury.

Under the group of assignments which constitute appellant's first contention, it is asserted that there was no direct evidence that the wet spot on the road caused appellee's car to skid or that the accident resulted from the fact that a wet spot had been created on the road by water being blown thereon from appellant's cooling towers. It contends further in this connection that, if there was a hazard or dangerous spot on the road near its cooling towers, it was created by the use of oil, instead of other road materials, as a surface for the road, and the road having been surfaced or paved with oil seven or eight years after the cooling towers had been erected by appellant, it could not be charged with negligence in placing its cooling towers near the road before the road had been surfaced, nor was it under the legal duty of removing the cooling towers merely because oil had been used by the county authorities as material with which to pave the road.

At the close of the testimony, appellant presented to the court its motion for a peremptory instruction and after the verdict was returned by the jury it presented and urged a motion for judgment in its favor non obstante verdicto. If appellant is correct in its contentions with reference to the matters raised by these assignments of error, it was entitled to a peremptory instruction and to a judgment non obstante veredicto, as contended for by it, because it would not be liable to appellee as a matter of law. We do not agree with appellant, however, in these assertions. It was shown by the testimony that on frequent occasions, over a period of several years prior to the accident, water would be blown from the cooling towers onto the road and that the surface of the road would thereby be made slippery and dangerous for passing automobiles. The place on the road that would thus become wet and slippery depended upon the direction from which the wind was blowing. If the wind was directly from the west, the wet spot would be created directly east of the cooling towers, and if the wind was from the southwest, the water would be blown northeast so that the wet spot would be farther north. Appellee testified that he was aware of the danger and knew that on frequent occasions the road was slippery because of water having been blown thereon from appellant's cooling towers. He and other witnesses testified that because of the dark appearance of the road it was difficult to observe the exact location of the wet places, especially on mornings like the one upon which the accident occurred, when there had been dew or fog the night before and the entire road was made more or less damp. Appellee said he retarded the speed of his automobile to about twenty or twenty-five miles an hour in passing the cooling towers, and, thinking that he had passed over the place where the water may have been blown upon the road, he accelerated his speed and his car immediately began to skid and that the skidding culminated in the accident. Another witness testified that he was traveling a short distance behind appellee on the same morning and that when he reached the wet place on the road his car likewise began to skid and that it was caused by the wet condition of the road. We think the testimony is amply sufficient to establish the facts, as found by the jury, that water from appellant's cooling towers had been blown upon the highway immediately prior to the accident; that the operation of the cooling towers by appellant in such proximity to the highway as to permit water therefrom to be blown upon the highway constituted negligence, and that such negligence was a proximate cause of the accident which resulted in appellee's injury and damage. It is true that the jury did not find, nor does the evidence show, that appellant operated its cooling towers in a careless manner, nor that they were out of repair or constructed in a manner different from what they should have been. But it is a general rule of law that the owner or occupant of premises abutting upon a highway, road or street must exercise reasonable care not to jeopardize or endanger the safety of persons lawfully using the highway, road or street as a means of passage or travel, and that he will be liable for any injury that proximately results from his wrongful acts in that respect. He is under the duty so to use and manage his premises as not to inflict injury upon those who, in the exercise of their lawful right, may be using the highway, road or street as a means of passage or travel. Gulf, C. & S. F. R. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 52 L.R.A. 293, 86 Am.St.Rep. 835; Southwestern Telegraph & Telephone Co. v. Sheppard, Tex.Civ.App., 189 S.W. 799; Beck v. Ferd Heim Brewing Co., 167 Mo. 195, 66 S.W. 928; Klepper v. Seymour House Corp., 246 N.Y. 85, 158 N.E. 29, 62 A.L.R. 955; Stephens' Adm'r v. Deickman, 158 Ky. 337, 339, 164 S.W. 931, 934, 51 L. R.A.,N.S., 309.

In the Kentucky case of Stephens' Adm'r v. Deickman just cited, it was alleged that Deickman owned a...