103 Kan. 880 | Kan. | 1918
The opinion of the court was delivered by
Alleging in her petition that her husband, Ross Cash, while in the employ of defendant, came to his death through defendant’s negligence, plaintiff sued_ and recovered judgment for $5,775, from which defendant appeals.
The petition alleged that Ross Cash at the time of his death was in the discharge of his duties as a pumper’s helper, and was on a tank car which was being filled with gasoline; that his duties required him to signal to the pumper when the car was filled, and in order for him to ascertain this fact it was necessary for him to stand on the tank car and lean over the dome; that while he was looking down into the dome to discover whether the tank was filled, fumes and vapors arising from the gasoline saturated and impregnated the air, so that he
Three acts of negligence are charged: First, defendant knew, or should have known, that vapors given off by gasoline being loaded into tank cars, were liable to overcome the deceased while performing his duties, and that defendant did not send any one to assist him in the event he should be overcome by gasoline fumes, but sent him unattended into a position of danger; second, that it was the duty of the pumper to watch Ross Cash while the latter was engaged in his duties, so that the pumper could render assistance to him if occasion demanded, which the pumper neglected to do; that the pumper deserted his position, and went to a place in the defendant’s refinery and remained for more than five minutes, during which the accident happened which resulted in the death of plaintiff’s husband; third, that the defendant was negligent in maintaining the open ditch along the track where the car was located, so that when Ross Cash fell from the car and into the ditch, he breathed oil and water and mud into his lungs.
Two grounds of negligence alleged in the petition wei;e eliminated at the trial; (1) the plaintiff offered no evidence to show that the pumper neglected to watch the deceased and render him assistance if occasion required, or that the pumper deserted his post; no instructions were asked upon that issue and none were given; (2) the court instructed that plaintiff was not entitled to recover because of the presence of the ditch by the side of the track. The case was submitted solely on the issue that defendant, knowing of the dangers to the plaintiff’s husband because of- the fumes and vapors coming from the gasoline, and that he was liable to be overcome, negligently ordered him into a position of danger without sending any one to assist or help him in the event he should be overcome by fumes.
Ross Cash at the time of his death was an able-bodied man, 21 years of age, and had been in the employ of the defendant for several months as pumper’s helper. In the afternoon of May 20,1917, he was at work as a pumper’s helper filling a car with gasoline. No one saw him fall from the car.
Roy Jarrett, an' employee of the defendant, was the principal witness for the plaintiff. He described the car, the loading rack, the situation of the valves, and the methods employed in filling a car. He saw Ross Cash about fifteen minutes prior to his death, at which time Ross was standing on the running
He testified that when a tank is full and the helper has given the signal to shut the pump down, and the pumper does this, it is the helper’s duty to go and close the valve on the loading rack, and shut the valve whether or not the pumper shuts off the pump; that in order to do this, the helper goes from the tank car to the loading rack on the board; that a man could get down from the car by going to the stairway (ladder) on the car instead of walking across the board; that if the spout was already in the car and the oil turned on when Ross Cash went upon the car, there would be no occasion for him to put the board across if he climbed up from the ground, but if he went
A deputy, state oil inspector, who was familiar with the loading rack in question, was called to testify to the presence of crude oil in the ditch on the issue which was not submitted to the jury. Over the objections of defendant, he testified to the conditions at other refineries; that ordinarily there are about two men to load a car, “That is, it’s about the usual way; they have one at the pump house and one at the car.” The pumper stops the pump, “as I have observed, when he is given the signal from the man on the car. If the pumper is not there, they have some one else there near to the pump, and when the signal is given, the pumps are stopped.” He testified, that if a car was running over upon a hot tank or outside shell of the car, there would ordinarily be more fumes than usual, and it was possible that a person' on top of the car would, if that condition occurred, be somewhat affected from the fumes, depending Upon the length of time he was there; that with the car running over and a 3-inch stream of gasoline running into it, some spray of the gasoline would come from the manhole. He further testified:
*886 “It is the duty of the loader of a tank car of gasoline when the tank car is full up to the shell, or up to the dome, and there is no pumper in sight to take any signals, to make an effort to get the gasoline stopped from wasting. He could do this by going to the pumps or valves and closing them. These valves are on the loading rack and I don’t recall any refinery that don’t have them. They are up about shoulder high from the loading rack. The farthest distance he would have to go from loading the car to the valves would be fifteen feet, the shortest distance would be eight or ten feet.”
His. testimony is that he had made probably 5,000 tests of gasoline from tank cars at various refineries and always reached down in through the dome to get gasoline, sometimes using a quart measure and dipping it up.
“The state does not send anybody with me to attend me on top of the tank car in.case I would be overcome with gasoline, and I don’t take anybody with me. I never knew in all of my experience of any one becoming overcome by gasoline, loading a tank car out in the open air. That is standing on top of the car and staying on top. I have heard of men becoming overcome in a closed place, from the fumes. That is when they; send a man down in a tank car to clean it out and when men are sent into a tank car to clean it out, they have an attendant on the outside of the car. ... It might be necessary where he is finishing out a car for a man to have his head over the opening in the dome, but I don’t think it would be necessary for him to put his head directly over it, but he could see in in a very short time¿ just an instant. Just look over this way and then come back. A loader does not have to take any particular place near the.dome while the car is being loaded. If the wind Were blowing in a certain direction so it was blowing the gasoline towards him, it would be possible for him to take another position, on the running board where that would not happen, and I naturally think that he would do this, and I don’t see anything to prevent him from doing so.”
Other testimony was offered, but none of it tended in any manner to disclose how Ross Cash cáme to his death, or what caused him to fall from the tank car. With their general verdict, the jury returned the following findings:
“Q. 1. Do you find that it was a rule of the defendant company in force at the time of the death of Ross Cash, for the loader of a car of gasoline to lay the foot board for a passageway between the tank car and the loading rack? A. No.
“Q. 2. Is it not a fact that the defendant by rule prohibited the loaders from jumping from the loading rack to the tank car and from the tank car to the loading rack? A. No.
“Q. 3. Does the evidence show that loaders of tank cars ofl gasoline, at times during the loading of cars, sit upon the open dome through which the gasoline fumes come, without injury to themselves and without being overcome by the fumes from the gasoline? A. Yes.
*887 “Q. 4. Do you find from the evidence in this case that prior to the death of Ross Cash, any loader of gasoline for defendant or for any refinery, to the knowledge of defendant, while standing in the open air as Ross Cash was at the time he was engaged in loading this car, ever became overcome by the fumes of gasoline? A. No evidence to show what defendant knew.
“Q. 5. Do you find that it is the custom of refineries to furnish an attendant for one loading a tank car of gasoline in the open air for the purpose of protecting him in case he should become overcome by gasoline fumes? A. Yes, for that and other duties.
“Q. 6. Do you find that the loader’s duties at times required him to load a car with gasoline without the assistance of the pumper, the one loader himself looking after the pump? A. Yes.
“Q. 7. How far away from the opening of the dome of a tank car do you find that a loader can stand and still see into the dome and determine whether the gasoline has reached the proper height? A. From six inches to eighteen inches.
“Q. 8. Do you find from the evidence that it was the duty of a loader of a tank car of gasoline, at the time when the gasoline reached the level of the bottom of the dome, in case the pumper was not in sight to take his signal as to the condition of the cqr, to at once cross over to the loading rack and there turn the valve and thus shut off the flow of gasoline into the car? A. Yes.
“Q. 9. How far from the tank car do you find that the pumper was accustomed to stand to take the’signal from the loader that it was time to shut down the pump? A. From 300 to 400 feet.
“Q. 10. If you find that the defendant was negligent, please state of what the defendant’s negligence consisted. A. The defendant failed and neglected to provide the customary number of men at or near the tank car or loading rack in question. Also the pumper not being at a place where he could receive a signal from Ross Cash.
“Q. 11. Do you find that it was customary in well appointed and managed refineries — similar to the defendant’s — to use more than one man when tank cars were being loaded with gasoline? A. Yes.
“Q. 12. Do you find that it was the' duty of the pumper for the defendant to watch Ross Cash while he was upon the tank car that was being loaded with gasoline? A. Yes.”
Complaint is made that the answers to questions 1, 2, 5 and 10 are none of them sustained by the evidence and are all contrary to the evidence, and that the court erred in not sustaining the motion to set them aside; and there is complaint of the admission of evidence showing the methods used in loading tank cars at other refineries. These rulings, in our opinion, need not be reviewed. A more important question arises over the demurrer to the evidence, which the court overruled.
The defendant suggests a number of theories which might account for the fall and death of deceased, some of which are fully as reasonable and as consistent with the known facts as the theory that he fell.because he was overcome by fumes of gasoline. The evidence did not show that men filling cars in the open air are likely to be overcome by fumes of gasoline to such an extent that they become unconscious. On the contrary, the evidence of the- witnesses is that they never knew of any one being overcome while filling a car in the open air. The plaintiff, therefore, suggests that Ross Cash might have fallen from the running board of the tank car while attempting to reach the ladder in order to get to the ground and go upon the loading rack for the purpose of shutting off the valve. The evidence shows he had neglected to place the board between the loading rack and tank car; and that his duties required him, whether or not the pumper shut down the pump, to go upon the loading rack and shut off the valve; that when the plank or board had not been laid across, there were only two ways for him to do this, either to go down to the ground from the car by the ladder, and up on the loading rack by a stairs, or jump across from the running board on the car to the platform of the loading rack. The distance was between 3 and 4 feet, and the platform of the loading rack was several inches higher than the' running board on the tank car. Ross Cash may have discovered suddenly that the tank was running over, and he may have áttempted to jump across this space to the higher level of the loading rack; he may have missed his footing and fallen into the ditch. The evidence is that cars were sometimes spouted without the board being placed between the rack and
In Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, it was held that, “where there is no substantial evidence, direct or circumstantial, tending to prove a material fact in issue, a finding that it exists cannot be sustained.” (syl. ¶ 2.) In the opinion, Justice Benson said:
“Presumptions, as understood in the law of evidence, must have substantial probative force as distinguished from surmise. If a fact may be established by inference from the presumption' of another fact, it. should at least be a logical deduction and reasonably certain in the light of all other proper presumptions and of all collateral facts. The chain of presumptions ought not to be extended into the region of conjecture. (Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.) A fact is not proved by circumstances which are merely consistent with its existence. (Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600.), The lamentable death of this man may have been caused by some mischance after the uncoupling was effected. It may have been caused in the manner claimed by the plaintiff. Possibly one conjecture is as reasonable as another, but the evidence does not reveal the cause of his fall. In the absence of such evidence there can be no recovery. (Hart v. Railroad Co., 80 Kan. 699.) It has been said recently by this court:
“ 'It is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party.’ (Brown v. Railroad Co., 81 Kan. 701, syllabus.) ” (p. 233.)
In Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251, the plaintiff was injured by the explosion of defendant’s powder mill. There was no evidence to prove what actually caused the explosion. The same principle was applied,-and it was held that, so far as the evidence disclosed, the explosion may have been caused by any one or more of the facts of negligence claimed, but this was not sufficient, because “a fact is not proved by .circumstances which are merely consistent with its existence. (Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101.)” (p. 292.)
It follows that the demurrer to the evidence should have been sustained. The judgment is reversed and the cause remanded with directions to enter judgment for the defendant.