Thompson v. The Union Traction Company

• Decision Date: 11 May 1918
• Docket Number: 21,522
• Citation: 103 Kan. 104,172 P. 990
• Parties: J. A. THOMPSON and F. D. THOMPSON, Partners, etc., Appellants, v. THE UNION TRACTION COMPANY, Appellee
• Court: Kansas Supreme Court

172 P. 990

103 Kan. 104

J. A. THOMPSON and F. D. THOMPSON, Partners, etc., Appellants, v. THE UNION TRACTION COMPANY, Appellee

No. 21,522

Supreme Court of Kansas

May 11, 1918

Decided January, 1918.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAY--Surface Oil Pipe--Pipe Broken--Damages. A company which maintains an oil pipe on the surface of a highway through which inflammable oil is flowing, is liable in damages to one who without negligence on his part breaks the pipe by driving a threshing outfit over it and sustains injury and loss from the escaping oil.

2. SAME--Surface Oil Pipe--Rights of User of Road. In taking their threshing outfit into a field adjoining the highway, in order to thresh a crop, the plaintiffs were entitled to use not only the worn part of the highway but also the whole width of the same so far as it was necessary.

3. SAME--Surface Oil Pipe--Damages--Evidence for Jury. In an action to recover damages resulting from the breaking of an exposed oil pipe a demurrer to plaintiffs' evidence was sustained, and upon an examination of the evidence it is held to have been sufficient to take the case to the jury as to the negligence of the defendant, and also as to the plaintiffs' contributory negligence.

Sullivan Lomax, of Cherryvale, for the appellants.

Chester Stevens, of Independence, and John J. Jones, of Chanute, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to recover damages for the alleged negligent burning of plaintiffs' threshing outfit. There have been two trials of the case; at the first of which a demurrer to the evidence was sustained, and the plaintiffs were given leave to amend their petition. At the second trial the court again sustained a demurrer to plaintiffs' evidence, and from that decision they appeal.

It was alleged in the amended petition that the defendant owns and maintains a two-inch pipe-line upon the surface of and along the south side of a public road, for the purpose of conveying fuel oil; that the plaintiffs came along the highway with their threshing outfit, with the intention of entering a field on the south side of the road to do some threshing; that the only entrance to the field was a passageway through a gap in the fence on the south side of the highway; that the pipe-line was entirely concealed from view by a rank growth of weeds; that plaintiffs did not know of its presence or the character of its contents; and that when their engine crossed the pipe the oil gushed out, caught fire, and destroyed the engine and threshing machine.

From the testimony introduced, it appears that the pipe-line is at the extreme south edge of the highway, near to the fence and about twenty-five feet from the center of the road; that there is a ditch between it and the roadway; and that at the place where the pipe crossed the passageway into the field the pipe was partially visible through the dirt. Before attempting to enter the field, one of the plaintiffs went ahead and inspected the ditch to ascertain whether the machine could be taken across it. He then started his engine across the ditch and over the pipe without putting anything down to protect it, the wheel of the engine punched a hole in the pipe, and the oil gushing out was ignited from the fire box. Although one witness said that plaintiff's attention was called to the pipe, the latter testified that he did not see or know that the pipe was there, and that no one told him about it.

Plaintiffs insist that there was sufficient evidence presented to take the case to the jury, and that is the only question presented on this appeal. As against this contention, it is argued that the evidence failed to show that the defendant owned or was in control of the pipe line. The line was used to convey oil from the defendant's station to the Coffeyville brick plant. In his testimony the foreman of that plant stated that the pipeline "belonged to the Union Traction Company, and it was the same line that was broken when the threshing outfit was burned." Another witness, in effect, stated that the oil was pumped to the Coffeyville brick plant; that the pump was located on the switch of the Union Traction Company;...