Wimberly v. Gulf Production Co.

• Decision Date: 02 July 1925
• Docket Number: (No. 8703.)
• Citation: 274 S.W. 986
• Parties: WIMBERLY et ux. v. GULF PRODUCTION CO.
• Court: Texas Court of Appeals

Page 986

274 S.W. 986

WIMBERLY et ux. v. GULF PRODUCTION CO.

(No. 8703.)

Court of Civil Appeals of Texas. Galveston.

July 2, 1925.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by W. O. Wimberly and wife against the Gulf Production Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Winfree & Weslow, W. C. Perry, and Devereaux Henderson, all of Houston, for appellants.

Claude McCaleb, John Broughton, and John E. Green, Jr., all of Houston, for appellee.

LANE, J.

This suit was brought by W. O. Wimberly and wife, Martha A. Wimberly, to recover the sum of $35,000; it being alleged they suffered damages in such sum by reason of the death of their son, John Wimberly, 18 years of age, who was fatally injured by an explosion of natural gas while in a bath room, owned by Gulf Production Company, on the 17th day of May, 1923. The plaintiffs alleged that defendant maintained a plant for drilling, storing, selling, and transporting oil and gas and oil and gas products, near Goose Creek, in Harris county, Texas; that in connection therewith it maintained a bath house equipped with shower bath apparatus and with fixtures for natural gas, which were used to heat the water used in said house; that the Production Company and its agents and servants in charge of its premises and bath house, had habitually permitted the public generally to use said bath house; that said house was especially fascinating and attractive to minors; that John Wimberly and other minors had frequently used the bath house with the knowledge and acquiescence of the Production Company, which amounted to an implied invitation for John Wimberly to use said bath house; that their son and his companions were led to believe and did believe that they were rightfully upon said premises; that the gas stove and pipes used for the purpose of heating the water used in the bath house were exclusively within the control of the defendant; that the gas was a dry natural gas, highly inflammable and explosive, and a highly dangerous agency; that defendant was aware of the danger of such gas and apparatus, bath house, and premises; that deceased was an immature youth, inexperienced in the control of gas, and in the operation of means and appliances for using same, and did not know the danger to which he was exposed; that defendant negligently and carelessly failed to warn deceased of the danger of using the gas, or to use any means to prevent the use of the bath house by children, but kept said house and premises open and easily accessible, and negligently failed to place about the premises and upon the bath house, or adjacent thereto, any signs warning persons thereon of the alleged dangers; that appellants' son and his companions had exercised due care for their own safety on the occasion of said explosion, and that the said fire and explosion were the direct result of the negligence of appellee in failing to maintain the gas pipes feeding the gas to the stove and other appliances in said bath house in a reasonably safe condition, and in permitting said gas stove, pipe, appliances, and apparatus to become old, worn, loose, weak, leaky, and defective, so that same were insufficient to contain, retain, and repress the amount of gas forced into said pipes and building by the natural pressure of said gas; that the explosion resulting from such negligence had severely injured and burned appellant's said son which injuries resulted in his death; that by reason thereof appellants had been deprived of the society and companionship of their said son, of his earnings during his minority, and of the amounts that he would have contributed to appellants after he had attained legal age, in all to their damage in the sum of $35,000, for which amount they prayed judgment of the court.

Appellee answered by general demurrer and general denial, and by special answer especially denied that the deceased, John Wimberly, was ever invited by appellee or any of its employés, who had authority so to do, either expressly or impliedly, to use the bathing facilities which appellee had provided for its employés; that said John Wimberly had entered upon said premises without authority, and was a trespasser, and that as such trespasser appellee owed him no duty, and was not bound to exercise any care for his safety. Further answering, appellee, while not admitting that John Wimberly was other than a trespasser on said premises, averred that the explosion resulting in the injury and death of said John Wimberly was the result of the contributory negligence of said John Wimberly and his companions, in that they entered upon said premises without notifying appellee or its employés of their intention to use said bathing facilities, and at an hour when appellee's employés in charge of said premises were absent or engaged in attending to duties in connection with the warehouse of appellee; that deceased, acting with his associates, were negligent, in that they failed to properly ignite the gas after turning same on, thereby permitting the gas to escape from the pipe in sufficient quantity to become dangerous, if a match was struck in said bath house; and that, after a dangerous amount of gas had been permitted to escape, the deceased, or one of his companions acting with him, had attempted to light said gas, or struck a match, which caused said gas to ignite, thereby causing the explosion and the resultant injuries.

After the plaintiffs had closed their evidence, the court instructed the jury selected to try the cause to return a verdict for defendant, which was accordingly done. Upon such verdict judgment was rendered for the defendant, from which the plaintiffs have appealed. On appeal, Wimberly and wife insist that the court erred in instructing a verdict for defendant, in that:

(1) "Whether the death of the deceased was the natural and probable consequence of the maintenance by appellee of defective apparatus, carrying a concealed and deadly amount of highly explosive natural gas, and whether in the light of the attending circumstances should have been foreseen by the appellee, was an issue of fact, which the trial court should have submitted to the jury for their determination." (2) "It was the duty of appellee to foresee the dangers to and the probable presence of and consequent injury to any one who used the facilities of the bath house maintained by appellee on its premises; and the evidence was sufficient to warrant a submission to the jury of the question of whether or not appellee should reasonably have anticipated that some person might probably go upon the premises to take advantage of such facilities." (3) "There was evidence that the failure of the appellee to post notices or give warning of the danger attending the use of its appliances for heating the gas was negligence, and the trial court erred in refusing to submit the same to the jury." And (4) "the issue as to whether plaintiff's deceased was a trespasser, a licensee, or an invitee, was a question of fact for the jury."

They also insist that the maintenance of the bath house, equipped as it was, was something unusually attractive to persons of immature judgment, and that such maintenance was an implied invitation for the deceased to go upon the premises and use bathing facilities in the bath house for the purpose of taking a bath. We shall first dispose of the contention last mentioned. We think it would, indeed, be the establishment of a dangerous precedent to hold, under the doctrine of "attractive nuisances," that an ordinary bath house, equipped as the one in question is shown to have been, is an attractive nuisance, or that it is such a thing as would attract a young man of more than 18 years of age to enter it and use its appurtenances, so as to bring it within the doctrine of "attractive nuisances."

Adopting substantially and almost literally the language of the court in the case of Shaw v. Chicago & A. Ry. Co. (Mo. Sup.) 184 S. W. 1154, we say: It would be a very exceptional state of facts which would render the doctrine of "attractive nuisances" applicable to a strong, active, healthy, and intelligent young man of more than 18 years of age. A part of the doctrine, the basis of it, is that the injured person is of such tender years that the "attractive nuisance" would so appeal to childish impulses as, in a sense, to constitute an invitation, and that such appeal should be foreseen, and care taken to prevent evil consequences. We are of the opinion that the deceased is not shown to have been within the class to which the doctrine applies. Shaw v. Chicago & A. R. Co. (Mo. Sup.) 184 S. W. 1154; Sage's Adm'r v. Creech, 194 Ky. 415, 240 S. W. 42. In the case from which we have practically quoted with approval it is said:

"The industry of counsel has unearthed one case applying the doctrine to a 14 year old boy. That case was exceptional in its facts. Biggs v. Wire Co., 60 Kan. 217, 56 P. 4, 44 L. R. A. 655."

We decline to apply the doctrine of "attractive nuisances" to the facts of the present case.

Having disposed of this contention just discussed, we are now brought to a consideration of the question as to whether the court erred in giving a peremptory instruction to the jury to find for the defendant. The only evidence introduced tending to show the circumstances under which deceased, John Wimberly, entered upon the premises and into the bath house of appellee, was the testimony of the witnesses P. T. Eichelberger and Frank Smith. Eichelberger testified as follows:

"My name is P. T. Eichelberger. I live at Goose Creek. I am 17 years old — will be 18 on the 5th of October. I have not lived at Goose Creek all of my life. I have lived there about 8 years. I was there when an explosion and fire occurred on May 17, 1923, on the Gulf Production lease, in the bath house right by the warehouse. That Gulf Production lease is located out south of Pelly. Pelly is part of Goose...