E. Torpedo of Ohio Co. v. Shelts

• Decision Date: 16 March 1926
• Docket Number: Case Number: 15914
• Citation: E. Torpedo of Ohio Co. v. Shelts, 1926 OK 237, 247 P. 974, 121 Okla. 129 (Okla. 1926)
• Parties: EASTERN TORPEDO OF OHIO CO. v. SHELTS et al.
• Court: Oklahoma Supreme Court

1926 OK 237

247 P. 974

121 Okla. 129

EASTERN TORPEDO OF OHIO CO. v. SHELTS et al.

Case Number: 15914

Supreme Court of Oklahoma

Decided: March 16, 1926

Syllabus

¶0 1.Evidence -- Res Gestae -- Employee's Statement as to Cause of Explosion Inadmissible.

Statements of defendant's employee, who had charge of shooting plaintiffs' oil well with nitroglycerin, made immediately after a premature explosion and after plaintiffs, who had sought safety some 100 to 300 feet away, had returned to the well and made in a conversation between such employee and one of the plaintiffs, and in response to the inquiry, "What's the matter, Vande, what's the trouble?" with the reply of defendant's employee, "A leaky shell, of course, nothing else," are not admissible in evidence as part of the res gestae.

2.Negligence--Res Ipsa Loquitur--Scope of Rule.

The rule of res ipsa loquitur is a rule of evidence only.It takes more than the mere happening of an accident to set the rule in operation.It must be shown that the occurrence was of such a character as that, in the light of ordinary experience, it is without explanation except on the theory of negligence.The thing causing the accident must have been under the control of the defendant at the time of the accident.Where there are several instrumentalities used in doing the thing out of which the accident arose, some of which were under the control of defendant and others of which were under the control of the complaining party, the doctrine of res ipsa loquitur will not apply where the accident may reasonably have occurred by reason of defects in the instrumentalities under plaintiff's control.

3.Negligence--Necessity for Proof--Proximate Cause.

Neither conjecture nor speculation forms a reasonable basis for arriving at a verdict in a case where recovery is sought upon the alleged negligence of the defendant, but there must be evidence reasonably tending to show that defendant was guilty of some one of the negligent acts charged and that such negligence was the proximate cause of the injury.

G. C. Spillers, for plaintiff in error.

Moss & Farmer and L. G. Owen, for defendants in error.

MASON, J.

¶1The defendants in error, as plaintiffs, began this action in the district court of Tulsa county, Okla., against the plaintiff in error to recover damages alleged to have been sustained by reason of the negligent shooting of an oil well.

¶2The parties will be referred to herein as they appeared in the trial court.

¶3Plaintiffs were the owners of an oil and gas lease on which they had drilled an oil well to a depth of approximately 2,500 feet.The defendant company, after accepting employment so to do, shot the well on August 22, 1922, with 80 quarts of nitroglycerin.On the following day, for some reason, the well was again shot with 140 quarts of nitroglycerin.Although considerable oil was produced after the second shot, the well evidently was not producing in a satisfactory manner, and, on September 4, 1922, the defendant company was called to shoot the well again with 40 quarts of nitroglycerin.In pursuance of this request, the shooter of the defendant company repaired to the well and attempted to shoot it.When the shell in which the nitroglycerin was being lowered to the bottom of the well, where it was to be exploded, had reached a depth of approximately 815 feet, it prematurely exploded and ruined the well and most of the casing and did other damage.

¶4Plaintiffs' petition and amended petition contain the following general allegations:

"Plaintiffs further allege that nitroglycerin is a highly dangerous explosive, and requires in its manufacture and in its handling, a high degree of care and skill.That the cause of the premature explosion in the plaintiffs' well was the result of the negligence and carelessness of the defendant, either in manufacturing or handling such nitroglycerin.That the defendant had itself manufactured such explosive, and in connection therewith or in the shooting of the said well, as aforesaid, it failed to use the proper degree of care and skill required in the manufacture and handling of the said explosive, and that the said premature explosion, as aforesaid, was due solely to the carelessness and negligence of the defendant, as aforesaid, and would not have occurred if such explosive had been properly manufactured and handled in a careful and skillful and proper manner."

¶5 After the introduction of all the evidence, the plaintiffs were permitted, over the objection of the defendant, to amend their petition so as to allege additional acts of negligence.This is urged as error, but, as we viewthe case, it is unnecessary to discuss the same.

¶6 In the amended petition, the plaintiffs allege the following acts of negligence: First, not using ordinary care in inspecting the shell; second, failure to wash and clean the shell after the glycerin had been poured therein; third, using a leaky shell; fourth, lowering the shell at a high and dangerous rate of speed.

¶7 The jury found for the plaintiffs, and judgment was rendered thereon for $ 15,726.25, from which the defendant appeals.

¶8 For reversal, it is first urged that the trial court erred in overruling the demurrer of the defendant to the evidence offered on behalf of plaintiffs.

¶9 This specification presents the issue whether or not, when all the testimony and the natural and rational inferences from it are carefully considered, there was any substantial evidence reasonably tending to show that defendant was guilty of some one of the negligent acts charged, and that such negligence was the proximate cause of the injury.

¶10The plaintiffs proved the highly explosive character of the material being used in shooting said well, but introduced no evidence in support of their allegation that defendant was careless and negligent in manufacturing the same.They proved the methods most suitable, in the opinion of witnesses, of inspecting the shells or tubes for leaks; that no such method of inspection was used by the defendant; that it was customary to clean such shells of all particles of nitroglycerin by certain methods before lowering them into the well; that the shell used in the instant case was not cleansed.

¶11Plaintiffs also introduced evidence as to the customary speed of lowering such shells and tubes and introduced certain evidence tending to show that the shell in question was being lowered more rapidly than customary.

¶12 The evidence also disclosed that the bit had been run up and down the hole several hundred times; that a swab, used in swabbing out the well, had been run in and out of the well several times a day for several days before the explosion, and that a bailer had been run several times immediately before the shell containing the nitroglycerin was introduced.

¶13 The evidence further disclosed that a leaky shell, which allowed nitroglycerin to accumulate on the outside thereof, together with the heat caused by friction in passing down through the casing, might have caused the explosion which occurred.

¶14 When the nitroglycerin was being lowered into the well, there was no one present except the shooter of the defendant company.All of the other parties present had sought safety in various retreats near the well.Their distances ranged from approximately 100 to 300 feet from the well at the time of the explosion.No one knew what the shooter was doing at the time of the explosion, except that they understood in a general way that he was lowering the shot into the well.

¶15 After the premature explosion, the plaintiffs and others near by came to the well and engaged the shooter in a conversation in which one of the plaintiffs asked him the following question, to which he made the following reply:

"Q.What's the matter, Vande, what's the trouble?

"A.A leaky shell, of course nothing else."

¶16 Over the objection of the defendant, the trial court permitted evidence of this conversation to be admitted.This is assigned as error by the plaintiff in error.Was this conversation a part of the res gestae?If so, it was properly admitted.Otherwise, its admission constituted reversible error.

¶17 In discussing what constitutes a part of the res gestae, this court, in City of Wynnewood v. Cox, 31 Okla. 563, 122 P. 528, said:

"'Res gestae,' as said by Mr. Wharton, in his work on Criminal Evidence (section 262), are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events.What is done or said by participants, under the immediate spur of a transaction, becomes thus part of the transaction, because it is then the transaction that speaks. * * *"

¶18 In the case of Missouri, O. & G. Ry. Co. v. Adams, 52 Okla. 557, 153 P. 200, it is said:

"In an action for damages arising from a collision between a railway locomotive and a wagon, in which the occupants of the wagon were injured, a statement by the engineer of the train, in response to a question by the conductor, made after the accident had occurred and the train had stopped and the engineer and conductor had alighted therefrom, held, not admissible as a part of the res gestae."

¶19 In the body of the opinion, at p. 562, the court says:

"In the opinions of courts of last resort are to be found innumerable decisions upon what is or is not admissible in evidence as a part

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