Texas Cities Gas Co. v. Dickens

• Decision Date: 06 November 1941
• Docket Number: No. 2324.,2324.
• Parties: TEXAS CITIES GAS CO. v. DICKENS et al.
• Court: Texas Court of Appeals

156 S.W.2d 1010

TEXAS CITIES GAS CO. v. DICKENS et al.

No. 2324.

Court of Civil Appeals of Texas. Waco.

November 6, 1941.

Rehearing Denied December 18, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from Seventy-fourth District Court, McLennan County; Giles P. Lester, Judge.

Personal injury action by N. P. Dickens against Texas Cities Gas Company and others. From a judgment against the named defendant, it appeals.

Affirmed.

See, also, 133 S.W.2d 810.

Darden & Burleson, of Waco, for appellant.

John McGlasson, Richey, Sheehy & Teeling, and Sleeper, Boynton & Kendall, all of Waco, for appellees.

SCHARFF, Special Justice.

N. P. Dickens, a city fireman, sued the Texas Cities Gas Company, Lone Star Gas Company, the First National Bank of Waco, and W. B. Dossett, T. B. Brazelton and E. A. Flowers, composing the Waco Land Trust, for injuries sustained by him as the result of an explosion caused by natural gas escaping into a burning building, while acting in his line of duty as a fireman. The case was submitted to a jury on special issues and the jury acquitted all of the defendants of negligence except the Texas Cities Gas Company and found that its negligence and failure to cut off the gas within a reasonable time after it learned of the fire and explosion was the proximate cause of the injuries sustained by plaintiff and fixed his damages at $20,550. Upon the findings of the jury the court rendered judgment in favor of plaintiff for said sum against Texas Cities Gas Company and denied a recovery by plaintiff against the other defendants and denied a recovery on the cross-actions asserted by each of the codefendants. Texas Cities Gas Company has appealed, and it will be referred to as appellant; Dickens as appellee; the First National Bank of Waco as the Bank; and the Waco Land Trust as the Land Trust.

Appellant assigns error on the part of the court in rendering judgment against it because, under the pleadings and evidence, appellee was at most a mere licensee as to appellant, and that the appellant owed no duty to said appellee save and except the duty not to wilfully injure him and not to injure him by its active negligence, and that the finding of the jury in response to special issue No. 3, to the effect that appellant failed to cut off the gas within a reasonable time, was not a finding of active negligence; and therefore the appellee was not entitled to recover.

The evidence showed that the Liberty building and annex were owned by the Bank and Land Trust at the time of the fire and explosion in question and were located on 6th and Austin streets in Waco. The appellant supplied gas to the premises, and the jury found that the Bank and Land Trust were not owners of the supply line nor was it under their control. There is no dispute as to the right of the appellant to serve the premises with gas by virtue of the contractual relationship between appellant and the owners of the building. The evidence shows that an explosion and fire occurred in the basement of the building on the morning of October 4, 1936. Appellee, at that time, was a fireman employed by the city of Waco. The Fire Department of Waco was summoned to the Liberty building immediately after the first explosion.

The evidence disclosed that approximately 3000 cubic feet of gas per minute was escaping into the basement of the building. The Chief of the Fire Department immediately had Mr. Burke, appellant's superintendent, notified to cut off the gas. Mr. Burke arrived at the scene of the fire within a short time after being notified. Mr. Fulton, another employee of appellant, arrived shortly thereafter. There is evidence in the record that the gas was not turned off from forty-five minutes to an hour and one-half after Mr. Burke's arrival, and that it would take only a few seconds to cut off the gas; and that both Burke and Fulton knew that gas was escaping into the basement of the building. There was sufficient evidence to support the answer of the jury to special issue No. 3.

The evidence disclosed that the appellee was injured while standing at the curb line in the gutter; that the gas line was located in the basement of said building at some distance from where the appellee was injured, and that the appellee never came in contact with the gas line or that portion of the premises where the same was located and which might be said to have been under the control of appellant.

We are of the opinion that the appellant had no ownership or control of the place where the appellee was injured, and the appellee's relationship to the appellant was not that of a licensee. Prairie Pipe Line Co. v. Dalton, Tex.Civ.App., 243 S.W. 619; Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302.

If we are mistaken in our view that appellee was not a mere licensee as to appellant, we are still of the opinion that the findings of the jury to special issue No. 3 was a finding of active negligence even though such finding embraced only an omission on the part of the appellant. Valee v. Joiner, Tex.Com.App., 44 S.W.2d 983.

Appellant complains of the action of the court in failing to instruct a verdict in its favor, for the reason that the undisputed evidence showed that appellee knew, understood and appreciated the danger, hazard, and peril of fighting said fire at said time and place, and voluntarily exposed himself to said known danger, hazard and peril, and therefore incurred the risk which caused his injury, and was guilty of contributory negligence as a matter of law.

The undisputed evidence in this case shows that appellee was employed by the Fire Department of the city of Waco at the time he received his injuries; that an explosion and fire occurred in the Liberty building during the early morning of October 4, 1936; and that appellee, together with other firemen, was summoned to the fire.

The Fire Chief testified, in part, substantially as follows: That when he arrived at the scene of the fire, the fire had made considerable progress and was shooting out of the freight elevator hole and another hole on the side of the building to a height of four or five stories; that the firemen would drive it back in there if they would hold the hose down in the hole; that the water would keep the fire from coming out, but as soon as they took the hose off it would come out; that before Mr. Dickens got hurt the Chief observed that at least three or more times the fire had been driven back into the basement and that it came back-lashing out of the manhole, and that was just as apparent, or possibly more apparent, to the men fighting the fire than it was to anybody else; that when he observed the firemen playing the streams of water into the manhole he told them to stay back and not crowd it too close. He did this because he thought the fire was liable to backlash and flash up in their faces.

Mr. Gillette testified, in part, and substantially as follows: That he was a fireman working on the hose with appellee; that when they were in the gutter the fire would flash out just like gun powder would go off and roll up the side of the building; that he had seen that flame puff out and blow out of there a number of times before the flash came that hurt appellee, but that they were not as big as the one that puffed and flashed out at the time appellee got hurt; that he realized it was a dangerous fire. At one point in his examination the witness testified that the Assistant Fire Chief did not give the firemen any warning, but subsequently testified as follows: "Q. Just to refresh your recollection, do you remember this question was asked, Mr. Gillette: `Do you remember Assistant Fire Chief Harrington or Chief Meers warning you to go back from that hole there in the sidewalk?' and you answered `Lee Harrington did,' and then the next question was asked `What did Lee say?' Answer: `He told us—he came up and asked us how we were getting along, and told us we had better back up, as near as I can remember, and I believe we were fixing to back up when we got burned,' and then this next question, `How long before you got burned was it that Mr. Harrington had warned you,' and you answered, `I judge about as far as from here to that street.' Question: `That would be about one hundred feet?' and you said, `Yes, sir.' Now with that to refresh your recollection, when Mr. Harrington came by just before the flash happened, do you remember now that he said anything about you ought to back up? A. I believe I do now, since you mention it."

N. P. Dickens, appellee, testified, in part, substantially as follows: After he heard the first explosion, which made a tremendous noise, his crew was called to the fire. He drove a truck to the fire and parked it at some distance from the building and proceeded to lay the hose line to the fire. After completing this task, he went to the hose nozzle, on which four men were used, two on each side, he being the back man on one of the sides. He observed that there had been a terrific explosion, which, in his opinion, caused the fire. He described the fire in the basement of the building, which was visible through holes in the sidewalk, as a terrible fire, the worst looking thing he ever saw; that the basement was aflame and glowing red; that roaring noises were coming from the basement; that these noises were unusual and sounded like they were made by an acetyline torch or blast furnace, and were continuous.

When asked whether he could see the gas burning in the basement through a hole in the sidewalk, he replied, "Yes, you could see it, you could not tell what it was, but you could see that terrible fire, and the fuel or whatever it was that was causing it was coming from the basement." He also stated that as far as he knew the gas was escaping from the time he got there until he was taken away, and there was an awful lot of pressure.

Water was turned on the fire in the basement through holes in the sidewalk, and at first the water had no...