Texas Cities Gas Co. v. Dickens

Decision Date20 January 1943
Docket NumberNo. 7944.,7944.
PartiesTEXAS CITIES GAS CO. v. DICKENS et al.
CourtTexas Supreme Court

Darden & Burleson, of Waco, for plaintiff in error.

John McGlasson and Davis E. McGlasson, both of Waco, for Dickens.

Richey, Sheehy & Teeling, of Waco, for Waco Land Trust.

Sleeper, Boynton & Kendall, of Waco, for First Nat. Bank.

SHARP, Justice.

N. P. Dickens filed this suit against Texas Cities Gas Company, Lone Star Gas Company, the First National Bank of Waco, Texas; and W. B. Dorsett, T. B. Brazelton and E. A. Flowers, the last three constituting Waco Land Trust. Dickens sought to recover judgment against the above-named defendants for personal injuries resulting to him from their alleged negligence. The case was tried with the aid of a jury. In response to special issues, the jury acquitted all the defendants of any actionable negligence, except the defendant Texas Cities Gas Company. As to this defendant, the jury found it guilty of actionable negligence in one particular. The jury also found proximate cause and damages in the sum of $20,550. The trial court entered judgment in accordance with the verdict. Texas Cities Gas Company appealed to the Court of Civil Appeals for the Tenth District. That court affirmed the judgment of the district court. 156 S.W. 2d 1010. The case is before this court on writ of error granted on application of the Texas Cities Gas Company. We shall hereinafter refer to this concern as the Gas Company.

The evidence in this case shows that on October 4, 1936, a very large and destructive fire and explosion occurred in the Liberty Building in the City of Waco, Texas, owned by the Waco Land Trust at the time of the fire and explosion in question; that such building consisted of nine stories and a basement; that the explosion and fire occurred in the basement of the building, the fire spreading to other parts of the building; that at the time such fire occurred N. P. Dickens was a fireman of the City of Waco, duly appointed and constituted; that when said fire occurred the city fire alarm was sounded; that such alarm called the city firemen, including Dickens, to go to such fire, after the first explosion, for the purpose of fighting and extinguishing such fire; that it was expected that the city firemen, including Dickens, would use the city's fire fighting equipment in fighting such fire; that Dickens, in line with his duties as a city fireman, responded to the fire alarm and went to the Liberty Building, where the fire was then raging; that when Dickens arrived at the fire he engaged with other firemen in fighting and attempting to control such fire; that at one time Dickens went into the building, but withdrew therefrom on being ordered to do so; that at the time he was injured, Dickens, with other firemen, was using a fire hose to throw or propel water into the burning building; that while so working Dickens was standing in the street, about at the edge of the sidewalk, and near an entrance of the burning building; that while standing at the point just named, in the discharge of his duties as a city fireman, as above described, a gas explosion occurred in the building; that the force of such explosion was so great that it propelled a flash of flame or fire across the street in which Dickens was standing; that the force of such explosion was such that it threw Dickens backwards for some distance in the street, and very seriously burned and otherwise injured him.

As we understand it, the Gas Company owned a franchise to sell gas in the city. It had a gas main in the street at or near the Liberty Building. From this main the Gas Company serviced the Liberty Building with natural gas. This was done by a pipe leading from the gas main into the building. The service which the Gas Company performed for the building required that the gas be conducted therein at all times. The Gas Company, however, had a way or means constructed or prepared by which it could cut the gas off from the building in a short time. The Gas Company did not use this cut-off, and did nothing to prevent its gas from continuing to flow into the building while it was burning.

The evidence also discloses that approximately 3,000 cubic feet of gas per minute were escaping into the basement of the building; that the chief of the fire department immediately after the first explosion notified Mr. Burke, the Gas Company's superintendent, to cut off the gas; that Mr. Burke arrived at the scene of the fire a short time after being notified; that Mr. Fulton, another employee of the Gas Company, arrived shortly thereafter. There is evidence in the record that the gas was not turned off for forty-five minutes to an hour and a half after Mr. Burke's arrival, and that it would have taken 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. Among other things, the jury found: (1) That the Gas Company, after learning of the fire and explosion in the Liberty Building, failed to cut off the gas within a reasonable time, to prevent it from flowing into the building; (2) that such failure was negligence; and (3) that such negligence was the proximate cause of the injury to Dickens.

There is evidence to support the jury's findings that the Gas Company failed to use ordinary care to cut off the gas that was flowing into the burning building, and that such failure was a proximate cause of plaintiff's injuries. Liability is denied on the ground that the plaintiff was a mere licensee therein, and that under the circumstances the Gas Company owed no duty to the plaintiff to cut off the gas, though it had the means at hand to do so. In its petition for writ of error petitioner makes the following statement:

"The pleadings and undisputed evidence in this case show that:

* * * * * * * *

"(2) Texas Cities Gas Company supplied gas to the Liberty Building and Annex for fuel consumption on and prior to October 4, 1936; there is some dispute in the evidence about the ownership of the gas lines situated in the basement of the Liberty Building, but it is undisputed that Texas Cities Gas Company had the right and authority to serve the Liberty Building and Annex with gas under and by virtue of the contractual relationship between Texas Cities Gas Company and the owners of the building."

In its pleadings the Gas Company sets forth the details of its arrangements with the owners of the building, alleging that all gas pipes and other facilities within the building were the property of the owners. It specifically denies that it owned the pipes within the building, or that it had any control over them. The jury found that the owners of the building did not own the pipe which ran from the Gas Company's lines into the building; but even if the Gas Company did own this pipe, it appears that plaintiff was not injured in that part of the building which was under the Company's control.

The rule that there is no duty to keep premises safe for trespassers or licensees is for the protection of the property owner. So long as he creates no nuisance, he is entitled to use his property as he sees fit. He is entitled to assume that his possession will not be disturbed by outsiders. It would be placing an unreasonable burden upon him to require that he keep his premises safe for strangers who come uninvited on his land for purposes of their own. Such...

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