Waters-Pierce Oil Co. v. Burrows

• Decision Date: 11 November 1905
• Citation: 96 S.W. 336,77 Ark. 74
• Parties: WATERS-PIERCE OIL COMPANY v. BURROWS
• Court: Arkansas Supreme Court

96 S.W. 336

77 Ark. 74

WATERS-PIERCE OIL COMPANY v. BURROWS

Supreme Court of Arkansas

November 11, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Garland Circuit Court; A. M. DUFFIE, Judge; affirmed.

STATEMENT BY THE COURT.

This action was brought in the Garland Circuit Court by J. C Burrows against Waters-Pierce Oil Co., Arkansas Gas Co. Chambers & Walker, Sam Mayer, and Leo Mayer, to recover damages for personal injuries caused by an explosion of gasoline vapor, which occurred on the 24th day of December, 1902, in a building at Hot Springs known as the Turf Exchange, while gasoline was being delivered by an employee of the Waters-Pierce Oil Company in a storage tank connected with a gas generating machine on the premises of the Turf Exchange. Plaintiff alleged in his complaint that the defendants, "acting together and in concert through their agents, servants and employees, then and there unlawfully, carelessly and negligently proceeded to transfer the gasoline from the vessel in which it was carried" to the lot on which the Turf Exchange is situated, "and in so transferring the gasoline the defendants unlawfully, negligently and carelessly allowed the gasoline to escape and run out and under the floor of the building on the lot, and unlawfully and negligently and carelessly allowed the gasoline to explode and wreck the building and inflict great and serious injuries upon the plaintiff," he being in the building at the time. For the damages sustained by him he asked for judgment in the sum of $ 10,000.

The defendant, Waters-Pierce Oil Co., answered and denied specifically each allegation of the complaint as to its negligence, or that of its agents or employees.

The action was dismissed as to Sam and Leo Mayer, and the jury returned a verdict in favor of the Arkansas Gas Company, and Chambers & Walker, and in favor of the plaintiff against the defendant Waters-Pierce Oil Company, and assessed his damages at $ 1,100.

The evidence adduced at the trial in the case tended to prove the following among other facts:

The defendants Chambers & Walker "were lessees of a two-story building in Hot Springs, in this State, known as the Turf Exchange, in which they conducted a saloon and gambling rooms. The first floor was a large single room, which opened on Central Avenue, and extended back westwardly the entire length of the building to an open area extending back to Exchange street. There was a bar in the front of this room on Central Avenue, and in the portion back of the bar, separated by a low partition, Sam and Leo Mayer, as co-partners and sub-lessees of Chambers & Walker, conducted a poolroom, in which they sold pools, or accepted wagers on horse races."

A short time before the 24th of December, 1902, "Chambers & Walker entered into a contract with the defendant, Arkansas Gas Company, to place on the Turf Exchange premises an automatic gas machine plant for supplying vapor illuminating gas * * in the entire Turf Exchange Building." This was done, and the machine "was accepted and put in operation by Chambers & Walker four or five days before the explosion occurred."

In the rear, and a few inches lower than the first floor of the Turf Exchange, was an open area or yard, which was of the same width as the building, and extended back about sixteen feet to a stone retaining wall twelve or thirteen inches thick located on the line of Exchange street, on which the rear of the premises abutted. The top of this retaining wall was eight or nine feet above the area, and on a level with the adjoining sidewalk, and had on it a board fence six or seven feet high, with a door opening from the street to a platform and stairway leading down into the area.

The area was paved with granitoid, except inside of a coal shed located at the southwest corner of the area. This shed was about ten feet by six feet square, and its west wall was a part of the stone retaining wall and of the board fence on top of the latter.

At the time the gas machine plant was placed on the premises, there was near the rear wall of the Exchange Building, at the northeast corner of the area, a drain opening, with a grated cover, for draining the area; there were also two narrow horizontal ventilator openings, one on either side of the rear door, through the wall, two or three inches above the floor of the area, which opened into the space over the poolroom. On the south side of the area there was a wall of a building, partly bricks and partly boards, and on the north side was a high board fence.

The gas machine plant consisted of an engine, generator, etc., a galvanized iron storage tank for holding a supply of gasoline, with pipes (two) connecting the engine and tank, and also a line of pipe connecting the storage tank with an iron receiving box in the sidewalk on Exchange street outside of the retaining wall.

The engine and generator were placed in a small house, covered with sheet iron, and located in the southeast corner of the area next to the rear wall of the Turf Exchange Building and the wall of the building adjoining on the south. This little engine house was raised on blocks two or three inches above the granitoid paving, so as to leave a clear space underneath, and there was a space of three feet three inches between it and the east wall of the coal shed. That (the east) wall of the coal shed was double. The outside boards of the same were nailed into the frame of the shed, horizontally, close together, the lower board resting on the granitoid pavement, and a tier of open board shelves were hung on the outside wall, and extended over towards the opposite wall of the little engine house. On these shelves were laid a lot of empty glass bottles.

The galvanized iron storage tank was cylindrical in form, 6 feet 6 inches long, and 18 inches in diameter, and would hold 67 gallons of gasoline. It was placed horizontally between the engine house and the coal shed, but cutting through the granitoiding of the area and excavating sufficient soil to permit of its being laid about one-half of its diameter below the surface. After it was laid in the trench, the tank was covered with two layers of brick laid on edge in cement plaster, and the whole was plastered over with a thick layer of cement, in such a way as to form a smooth arched mound, 7 to 7 1/2 feet long and rising about twelve inches above the level of the area floor, which practically filled up the space between the engine house and the coal shed, with a slope towards each.

The tank was connected with the generating machine proper by two small iron pipes, through one of which the machine automatically drew from the tank its supply of gasoline, and through the other discharged back into the tank any surplus of fluid. Neither these connecting pipes nor the engine was involved in any way in the explosion, but still a knowledge of their location, etc., is essential to a proper understanding of how the explosion occurred.

There was also attached to the top of the tank, near its south end as it lay embedded in the area, an upright iron pipe 10 or 12 inches long and 1 1/2 inches in diameter, which is called in the testimony the "T" pipe or the upright "T pipe." The upper end of this pipe had threads cut in it, and was fitted with an iron cap which could readily be screwed off or on the pipe. Inside the tank was a "cloat" with an upright wooden stick less than an inch in diameter, which extended up through the upright "T" pipe for the purpose of indicating the quantity of gasoline there was in the tank while the latter was being filled, etc. With the cap of the upright pipe off, the end of this stick would rise up out of the pipe as the gasoline was filled into the tank. When the tank was full, the stick would stand about six or eight inches out of the pipe, and when empty the end of the stick would be flush with the end of the pipe. This pipe was to be kept closed except when the tank was being filled or it was desirable to know how much gasoline was in the tank.

The line of pipe connecting the storage tank with the receiving box was arranged as follows: The end of a line of pipe, of the same inside diameter as the upright T pipe on the storage tank, was attached at right angles to the latter pipe where it joined the top of the tank, and extended thence, horizontally and obliquely with the tank, from three to three and one-half feet to very near the outside east wall of the coal shed; thence up vertically through the tier of shelves six feet three inches; thence at right angles with the tank, through the east wall of the coal shed and the stone retaining wall, to a point about 12 to 15 inches outside the latter wall and twelve inches below the surface of the sidewalk on Exchange street; thence vertically about six inches to the bottom of a cast iron box, designated in the testimony as a "receiving box", and having a one and one-half inch opening through the bottom to which the end of the six-inch vertical pipe was attached.

The receiving box was about six inches long, five inches wide and six inches deep, with a hinged lid, and lock for locking the same when the box was not being used. It also had, extending up from the bottom some two or three inches, an open nipple or pipe, with thread on it for receiving a cap. This open nipple was a continuation of the opening in the end of the pipe attached to the bottom of the box. The box had also another open nipple extending through its bottom, but it was not utilized in any way in connection with this particular apparatus, and was filled underneath with the soil which the bottom of the box rested on. The box was sunk in the sidewalk a few inches outside the stone retaining wall, and bricks were laid around it, and...