Worcester v. Pure Torpedo Co.

• Decision Date: 04 February 1944
• Docket Number: No. 8258.,8258.
• Citation: 140 F.2d 358
• Parties: WORCESTER et al. v. PURE TORPEDO CO.
• Court: U.S. Court of Appeals — Seventh Circuit

140 F.2d 358 (1944)

WORCESTER et al. v. PURE TORPEDO CO.

No. 8258.

Circuit Court of Appeals, Seventh Circuit.

February 4, 1944.

Barnabas F. Sears, of Aurora, and Donald L. Thompson, of Chicago, Ill., and Charles Wham, of Centralia, Ill., for appellant.

Joseph Harrow, John Owen Wilkinson, and Corwin D. Querrey, all of Chicago, Ill., for appellees.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Plaintiffs brought this action to recover damages alleged to have been caused by the negligence of the defendant in shooting an oil well with nitroglycerine. The case has been tried twice and in both trials the issues and pleadings were the same. At the first trial the verdict was for the defendant. Upon appeal we reversed because of erroneous admission and exclusion of evidence, 7 Cir., 127 F.2d 945. There was a second trial before a jury and a verdict for the plaintiff. From judgment thereon defendant appeals.

On this appeal defendant contends chiefly that the trial court erred in failing to direct a verdict in its favor. It insists that plaintiffs were guilty of contributory negligence as a matter of law, and that there was no evidence tending to prove defendant guilty of negligence.

It is well settled law that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and what is the proximate cause of damages are questions of fact to be properly submitted to and determined by jurors from a consideration of all the attending facts and circumstances. On a motion for a directed verdict, it is the duty of the court to accept as true all the facts which the evidence tends to prove, and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.

Defendant claims that plaintiffs, for the purpose of shooting the well, furnished defendant with a defective control head, and insists that the evidence shows conclusively that the explosion could not have occurred in the manner in which it did except for the defective control head. The argument is that had the control head functioned properly and remained closed after Mendenhall closed it, the oil and gas pressure would have been held at the top of the well, in which case the torpedo would have been allowed to descend to the bottom.

True, it is well settled that the person to whom an appliance is furnished is not responsible for its condition and in the absence of knowledge of any defect in the appliance, cannot be held liable for damages caused by an accident arising out of a defective condition of such an appliance, Allegretti v. Murphy-Miles Oil Co., 363 Ill. 137, 1 N.E.2d 389. It is true that the control head, a safety device used to stop or control the flow of oil, was supplied by plaintiffs, but there was evidence that it closed tight against pressure and at no time opened by itself. There was nothing in any way wrong with it. It had been tested on the day of the accident and worked "like it should." It was relatively new, in good working order and condition, and had been used only a few days previous to June 6, 1940. Mendenhall testified that he checked the control valve for closing, and stated, "it was the easiest control head I had worked in twenty-seven years." Contributory negligence is nothing more or less than negligence on the part of the plaintiff, and the rules of law applicable to negligence of a defendant are applicable thereto. Village of Clayton v. Brooks, 150 Ill. 97, 37 N.E. 574. This being so, under this state of the record, the question of whether the plaintiffs were guilty of contributory negligence was a question of fact for the jury.

We now consider what we believe is the controlling question in the case — whether there was evidence tending to prove defendant guilty of negligence.

Defendant concedes that an oil well shooter may be liable for negligence, but it says, before there can be actionable negligence in this case, there must be a duty from the defendant to the plaintiffs, a violation of that duty, and resulting damages, and makes the point that it was required to possess ordinary skill and that its duty to plaintiffs was to give them the benefit of its best judgment. This it says it did, and contends that Mendenhall's conduct at most amounted to a mere error in judgment, for which it cannot be held liable.

In support of its contention defendant cites the well settled principles that persons practicing as physicians and surgeons are required to possess and practice their profession with ordinary skill, and proof that a good result was not obtained is, of itself, no proof of negligence, but that there must be affirmative proof of such negligence. The argument is that in our case the well suddenly and without warning started to gush from the control head and that Mendenhall did not know or suspect that the well would flow when it did.

The complaint alleged that the defendant agreed to shoot the oil well in a good workmanlike manner with the usual customary care, caution, and skill required by the dangers involved in the performance of such work; that before shooting the well,¹ it was defendant's duty to ascertain whether the well was in a safe condition for lowering a torpedo filled with nitroglycerine; that in the exercise of reasonable care and skill, the defendant knew or should have known that the well was in an unsafe condition for shooting; and that thus it was the duty of defendant, before lowering the torpedo, to clean out the well by swabbing,² or, if the swabbing process was insufficient to render the well safe, to kill the well³ with water or oil.

On June 4, 1940, Mendenhall went to the well to solicit the job of shooting the well. He was given the job on June 6. Prior thereto Mendenhall had followed the profession or business of shooting oil wells for twenty-seven years, averaging 140 to 150 wells a year. The oil well in question was located in a high pressure gas field, the wells being described as "wild," and the wild, gassy character of the locality being generally known to oil men and others working in that vicinity. On June 6, the well had been drilled to a depth of 2277 feet and the casing set to a depth of 2255 feet. After the drilling had been finished, the well was cleaned and plugged, the casing was cemented, and the water was bailed out. About 100 feet from the well was a 100-barrel tank of water, with pipe and tap connection to the well, as well as a pit full of dead oil and a pipe connection from the pit to the well. There was also a hand pump swab and a bailer, and Mendenhall knew that in order to run the water or dead oil into the well, all one had to do was to open the valve. When Mendenhall, on June 6, came to the well, it emitted a steady flow of gas. From 6 a. m. until noon of that day, the well was swabbed once every hour, but when Mendenhall arrived at about 1 p. m., the oil had risen to about 1700 or 1800 feet, the gas was escaping in short puffs, and the well was making a rumbling noise. To check the depth of the well and to make a test for possible obstructions, Mendenhall lowered a dummy shell filled with gravel. On its way down through the oil, the dummy bounced three times causing the line to which it was attached to stop for a moment, indicating that the dummy had struck a gas pocket. It took one hour to prepare the torpedo for shooting after the dummy was withdrawn from the well, and while the torpedo was being prepared, the puffing of...