Talley v. Beever & Hindes

• Decision Date: 09 December 1903
• Citation: 78 S.W. 23
• Parties: TALLEY v. BEEVER & HINDES.
• Court: Texas Court of Appeals

Page 23

78 S.W. 23

TALLEY v. BEEVER & HINDES.

Court of Civil Appeals of Texas.

December 9, 1903.

Error from District Court, Frio County; E. R. Lane, Judge.

Action by J. R. Talley against Beever & Hindes. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Jno. L. Little, Duval West, and I. N. Spann, for plaintiff in error. R. W. Hudson and C. A. Davies, for defendants in error.

JAMES, C. J.

Plaintiff, aged 17 at the time of injury, suing by his father and next friend, J. E. Talley, alleged, in substance, that Beever & Hindes, a partnership firm, sold to J. E. Talley a "pear burner," a machine of their own manufacture, to be operated by the use of gasoline for the purpose of burning prickly pear on his ranch; that while plaintiff was pumping air into the cylinder or tank containing the gasoline, in order to form the gas, and while he was following directions for using the machine, the cylinder burst from the pressure of the gas within, and the gas expelled therefrom, becoming ignited at a fire close by, caused plaintiff his injuries. The petition alleged among other grounds for defendants' liability that they were negligent in using weak and defective material in making the machine, and also negligent in having the top of the cylinder insecurely fastened or attached to the cylinder. Although other issues than negligence were set up in the petition, such as misrepresentations and warranty concerning the machine as to its safety for use, the trial court submitted the case on negligence alone, and plaintiff did not request any other submission. The verdict was for defendants. Under these circumstances, we must treat all other issues or grounds for defendants' liability as properly out of the case.

We have come to the conclusion that the evidence does not show that defendants were guilty of negligence, and, if this be correct, the errors assigned are immaterial.

The machine was not sold to plaintiff, but as the father testified that he informed defendants' agent of whom he bought it that he was buying it for his sons to use on his ranch, and as the court proceeded upon the theory that plaintiff was a person entitled to complain of defendants' negligence, we shall, without discussing that question, assume that defendants were liable to him for negligence.

Defendants could in this case be held to the exercise of ordinary care in the construction of the machine, but not to that high degree of care which is required of persons selling articles which are inherently, imminently, and necessarily dangerous when used. In Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455—a widely approved case—a dealer in drugs labeled a deadly poison as harmless, and he was held to be liable to all persons injured in consequence of such label, through whosesoever hands the drug may have passed. The same court refused to extend this rule to a case such as the one before us. Losee v. Chute, 51 N. Y. 494, 10 Am. Rep. 638. The rule seems to be that one who deals with a thing which is inherently very dangerous, involving both death and bodily harm to some person as the natural and almost inevitable consequence of lack of care, owes to the public at large the duty of extreme caution. The machine in question was not a thing of that nature, and only the standard of ordinary care applies. Reiss v. N. Y. Steam Co., 128 N. Y. 103, 28 N. E. 24.

It appears that on this machine there were directions for its use, and we are of opinion that when a machine is sold, accompanied by directions for its use, the maker should not be held to a greater degree of care in its construction than to construct it of reasonable strength and fitness when used in accordance with directions. Such use is contemplated, and the thing is manufactured to be so used. However, plaintiff testified that he was following the directions, with which he was familiar, at the time he was hurt. He says he was pumping air into the cylinder which contained the gasoline, and had made the proper number of strokes, when the top blew out. He also testified that the machine had not been exposed to the heat of the fire, so that, according to his testimony and that of his brother, who was with him, the machine may be said to have burst when operated substantially in accordance with the directions, and from the pressure of the gas formed in the cylinder.

The explosion, it is contended, was evidence of the defendant's negligence. The rule is that such presumption does not arise from the fact alone. McCray v. Ry., 89 Tex. 168, 34 S. W. 95; Broadway v. Gas Co., 24 Tex. Civ. App. 603, 60 S. W. 270; Reiss v. N. Y. Steam Co., 128 N. Y. 103, 28 N. E. 24. As explained in the McCray Case, the circumstances attending the occurrence may be sufficient to establish negligence without any direct proof of the fact. The only departure which plaintiff shows he made from the directions was that he did not see that the jet was open. We cannot see how this omission contributed to the explosion. The stop-cock was to be closed while the air was being pumped in. Therefore it seems that whether the jet was open or obstructed was of no consequence. There is some probability that the heat from the fire had something to do with the explosion, but not if plaintiff's testimony be accepted as true. Hence it might seem that, plaintiff having testified that he was using the appliance according to directions, and while so doing was himself not guilty of negligence, the jury would have been authorized to infer defendants' negligence from the fact of the explosion under these circumstances. This might with some reason be claimed if the further fact had been shown that the machine was in the same condition as when it left defendants' hands. There was nothing to show this. The machine had been bought for use on the ranch in procuring feed for cattle in winter. It had been on the place some time. It had been used, the evidence does not show to what extent. The father testified he did not know how many times plaintiff had used it. Plaintiff says he had used it before that morning, but says nothing more on this subject. It appears to have been turned over to the boys to...