Watson v. Kentucky & Ind. Bridge & Ry. Co., &C.

• Decision Date: 18 March 1910
• Citation: 137 Ky. 619
• Parties: Watson v. Ky. and Ind. Bridge and Ry Co., &c.
• Court: Kentucky Court of Appeals

Page 619

137 Ky. 619

Watson v. Ky. and Ind. Bridge and Ry Co., &c.

Court of Appeals of Kentucky.

March 18, 1910.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

EMMET FIELD, Judge.

From the judgment plaintiff appeals. — Reversed as to one defendant and affirmed as to the others.

BRADFORD WEBSTER, ARTHUR C. POPHAM, CHATTERSON & BLITZ, O'NEAL & O'NEAL, B. H. YOUNG, C. W. HUGGINS and J. MORGAN CHINN for appellant.

DAVID W. BAIRD, E. P. HUMPHREY, HUMPHREY, DAVIS & HUMPHREY and KOHN, BAIRD, SLOSS & KOHN for appellees.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

This action was instituted by the appellant, John Watson, in the court below, against the appellees, Kentucky & Indiana Bridge & Railroad Company, hereinafter called the Bridge & Railroad Company, the Southern Railway Company, the Southern Railway Company in Kentucky, and the Union Tank Line Company, to recover $20,000 damages for injuries sustained to his person on the night of June 14, 1907, from an explosion of gas caused, as alleged, by the negligence of the appellees. It was, in substance, alleged in the petition as amended that while a tank car, owned by the appellee Union Tank Line Company, and filled with a highly explosive substance, known as gasoline, was being transported through a populous section of the city of Louisville over the roadbed of the appellee Bridge & Railroad Company, it was derailed and its valve broken, thereby causing all the gasoline to escape and flow in large quantities on the street and into the gutters; that from the gasoline thus flowing and standing in pools upon the street and gutters there arose and spread over the neighborhood of the place of derailment and into the houses of the residents thereof, great quantities of highly explosive and combustible gas which, three hours after the derailment of the tank car, exploded with force from contact with a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in igniting a cigar; that the explosion threw appellant from his bed and almost demolished his house, from the ruins of which he was taken unconscious and bleeding with a fractured jaw and one cheek nearly torn from his face. It was further charged in the petition that the explosion and appellant's consequent injuries resulted from the negligence of all the appellees; the negligence of the Union Tank Line Company lying, as alleged, in its failure to provide a tank car with proper trucks and main valve; that of the Bridge & Railroad Company in failing to maintain in a safe condition the roadbed and track at the point of derailment; in permitting the tank car to remain at the place of derailment in its wrecked condition an unreasonable time, and in allowing ignorant and careless meddling on the part of their servants with the main valve of the tank after it was broken, whereby the flow of the gasoline from the tank was increased instead of diminished. All the material averments of the petition were specifically denied by the answer of the appellees. As on the trial the proof failed to show that either the Southern Railway Company, or the Southern Railway Company in Kentucky, was charged with the duty of maintaining the roadbed or tracks at the place of derailment or that they had handled or had anything to do with the tank car in question, appellant, at the conclusion of all the evidence, dismissed the action without prejudice as to those two appellees. At the conclusion of appellant's evidence, the appellees Bridge & Railroad Company and Union Tank Line Company moved the court peremptorily to instruct the jury to find for them. The motion was overruled, but being renewed by appellees after the introduction of all the evidence, it was sustained, and the jury, in obedience to the peremptory instruction then given by the court, returned a verdict in behalf of appellees, upon which judgment was entered in their favor for costs. Appellant being dissatisfied with that judgment and the refusal of the circuit court to grant him a new trial, has appealed.

The main question involved in this appeal is, whether or not the trial court erred in giving the peremptory instruction. Its decision will require consideration of the evidence. It is conceded that the tank car belonged to appellee Union Tank Line Company, and the evidence conclusively shows that it was loaded at Franklin, Pa., with gasoline. In reaching the consignee at Louisville, it passed over several lines of railroad, but was delivered by the Baltimore Ohio & Southwestern Railroad to the appellee Bridge & Railroad Company, in the city of Louisville, at what is known as the Youngtown yards. The latter company was at the time of the accident hauling the tank car, attached to one of its trains, from its railroad yards near the Ohio river to the place of business of the consignee in the southern part of the city. The derailment of the car occurred about 7:30 o'clock in the evening between Walnut and Madison streets. The gasoline began at once to escape from the tank and continued to do so for several hours until the tank was emptied. By the derailing of the car the discharge pipe beneath the tank provided for emptying it of its contents, was broken, as were the appliances for opening and closing the valves by which the contents were allowed to leave, or prevented from leaving the tank. The gasoline in escaping from the tank ran down a gutter or drain in the street and along appellee Bridge & Railroad Company's right of way, several hundred feet to a sewer, into which it flowed. The employes of appellee Bridge & Railroad Company connected with the train in question, and later the wrecking crew called to their assistance, seemed to be unable to stop the escape of gasoline from the tank, or at any rate did not do so. From the gasoline, vapor or gas of a highly combustible character arose and permeated the atmosphere a distance of 500 or 600 feet from the place of derailment. About 11:30 o'clock, Charles Duerr, who with Charles Miller and two young women, designated in the record as the Warner girls, was standing in front of the Warner residence on Madison street, a square west of the place of the accident, struck a match which he threw to the ground, and this match in its descent came in contact with the gas generated by the flowing gasoline, thereby causing the explosion by which appellant was injured.

There is no disagreement between the parties as to the facts thus far stated, but there are several issues of fact yet to be considered with respect to which there is sharp controversy. One of the points of difference is as to the condition of the railroad track where the tank car was derailed. The evidence of appellant conduced to prove that it was defective and unsafe. Indeed, several witnesses introduced by him testified that the derailment of the car was caused by a low or loose joint in the rails which sank under the wheels of the car to such an extent as to throw it from the track, in leaving which it broke one of the rails; that the low joint was produced by the rottenness of the ties supporting it, want of ballast between the ties, and the flat or swampy condition of the roadbed at the place of derailment. According to the further statements of the witnesses in question the bad condition of the roadbed and track, as described, had continued a long time, and must have been known to those charged with the duty of keeping it in repair. On the other hand, a number of witnesses introduced by appellees were of opinion that the roadbed and track were in a reasonably safe condition and the testimony of some of them conduced to prove that there was no low joint in the rail and that the car left the track 26 feet before reaching what appellant's witnesses called the low joint, and that the derailment of the car was an unavoidable casualty or accident which could not, by the exercise of ordinary care, have been prevented. But considering the evidence as a whole, it cannot be denied that much of it was to the effect that the derailment was caused by the negligence of the appellee Bridge & Railroad Company in failing to keep its roadbed and track in repair. We find a much greater contrariety of evidence as to appellant's contention that the employes of the appellee Bridge & Railroad Company were negligent in handling the tank car after the derailment. It is apparent from the testimony of all the witnesses that the discharge pipe under the tank and the appliances for operating the tank valve were broken by the derailment of the car, and that the gasoline immediately began to escape. It was, however, stated by appellant's witnesses that the escaping gasoline was at first but a small stream, but that appellee Bridge & Railroad Company's servants in charge of the derailed car by their negligence in handling it, increased the flow of gasoline therefrom. This they stated was done by their opening a manhole on the top of the tank, and also by completely opening the valve at the bottom thereof in the effort to close it; that by thus opening the valve below and thereby removing the partial obstruction to the escape of the gasoline, the pressure of the air coming through the manhole above facilitated its flow, and such increase of the flow created the greater quantity of gas in the surrounding atmosphere, which, in turn, increased the probability of an explosion, and added to the danger of all persons within the radius of its influence.

As already intimated, the testimony of appellee's witnesses radically differed from that of appellant's as to what was done to stop the escape of the gasoline after the derailment of the car. They all denied that they caused, or that there was, any increase in the flow of gasoline from the tank, and claimed that they did everything in their power to stop the leak; using for that purpose waste, mud, and other appliances after they discovered that the discharge pipe was broken, the valves...