*1
RY.
O’LEARY
CO.
TERMINAL
BELT &
HOUSTON
proper
legisla-
trial court to have
In
is remedial
The statute
jury.
questions from the
tion,
those
that
it
withdrawn
Therefore the
its face
shows
assignments relating
remedying
to those
purpose
what
enacted for the
overruled.
evil. defenses are
Legislature
deemed
must have
shown,
knowledge
No reversible error has oeen
that
common
is a matter of
It
for
years prior
is affirmed.
enactment
companies,
general
Affirmed.
as a
insurance
the statute
rule,
policies
is-
embodied
making many things war-
stipulations
sued
sought
policy
which,
ranties
BELT
RY.
TERMINAL
CO.
enforced, appeared
immaterial.
be
to
to
al.†
et al. O’LEARY et
always
stipulations
embodied
Such
Appeals
printed
(Court
furnished
of contract
March
forms
Civil
of Texas.
Rehearing,
1911. On Motion
companies.
used
the insurance
April
1911.)
legislation un-
supposed evil that
that
Negligence
(§ 33*)
remedy.
1.
Prem
to
was intended
der consideration
—Condition
to
ises —Cake as
Licensee.
in constru
universal
[5] The rule is
premises
is
rule that
owneif
consider
entering
courts will
a remedial statute
liable to one
thereon
invita-
without
injuries resulting
dangerous
tion
condition continuous in its nature
cable
from a
remedied,
give
to
the evil intended
appli-
is not
language
con
a
statute
liberal
of the
injuries arising
from un-
case
legisla
accomplish
in order to
is
a
na-
struction
not of
continuous
usual
ture
owner.
purpose.
tive
liberal
a
[61
exist for
Other reasons
Negligence,
cases,
[Ed.
other
Note.—For
see
(1)
statute,
are
these
of this
and
contained
struction
45-47;
Dig.
Dig. 33.*]
§§
§
Cent.
Dec.
legislative
sec
a
declaration
Negligence
(§ 32*)
2.
of Prem
—Condition
Stat
Revised
tion
of the final title
ises —Care
Licensee.
legislation
rightfully
to the effect
Where
is
utes of
a
premises
another,
licensee,
as a
he has
even
liberally
should be construed
this state
that he
of the proprietor
pur
legislative
accomplish
order
injure
conduct himself
not to
pose;
negligence.
for
not favor
law does
his active
Negligence,
feitures,
legislation
eases,
under consid
[E'd.
Note.—Por
see
other
Dig. §
Dec.
32.*]
pre
eration was enacted
Explosives
Negligence
—8*)
venting
(§
on account
immaterial
forfeitures
Car
3.
—
—
Required
rier
as to Licensee
Care
Keeping
rules
matters.
these
view
Danger.”
“Continuing
stip
opinion
construction, we
freight
company delivering
A railroad
a
consideration,
policy
fireworks,
containing
ulation in the
liability
explode
contents,
its
liens,
rep of
its
equivalent
reference
concussion,
in its
negligently placed the
car at
or
statement on the
resentation
subjected
it
to im-
where would
no liens then existed
assured that
the
pact from
of concussion
other cars. As
policy,
property
car after an
and a
broke out
covered
contents, and,
fire alarm
stipulation
therefore that
comes within
in,
intestate,
plaintiff’s
turned
en-
terms of
statute.
department, approached
gineer of the fire
stip-
extinguish
burning
received
We are also of the
a serious
from a further
guaranteeing
policy
ulation
building
continuing-
Held, that
was not a
property
in which the
was rule that an owner of
provided throughout
coming
“is
chimneys,
brick
stone
invi-
is not
to one
thereon without
injury resulting from usual
condi-
tation
tion
was
was
tinuous
such
ground,
built from the
premises, and the fact that
there is no flue
ma-
constructed
a succession
while the fire
stone,
terial
brick or
and none
than
which is
burning did not
a condition of con-
create
bring
joists
brackets,
intestate within
built on
its
or
upon
or which has not
rule.
ground,”
foundation
a state-
cases,
Explosives,
see
8.*]
[Ed. Note.—For
representation
ment
the contract of
Dig.
Dig.
§
Dec.
§§
Cent.
purview of
within the
surance
The
a
that
statute.
Negligence
(§ 32*)
of Prem
—Condition
stipulation
reference to flues is
ises —Licensees.
promissory warranty,
but no breach of
entering premises to
A fireman
respect
is,
stipulation
proved.
owner of
a fire
In
keep
condition,
same
safe
fact,
it was
shown
flues
licensee.
building
been constructed
is-
after the
cases,
Negligence,
other'
[Ed. Note.—For
see
policy;
suance
the flues were
shown
Dig.
42-44;
Dig.
32.*]
Dec.
§§
§
Cent.
in use
at the time of the
Negligence
(§ 62*)
Cause”
—“Proximate
fire. Hence we' conclude
error was
reversible —Consequences
of Act.
intervening
act
trial
will break the
committed
Whether
original wrong-
between the
causal connection
reference to the defenses founded
subsequent
dependent
ful act and
fact,
to.
In
warranties
pleadings
referred
as the
injury complained of or
some in-
whether
testimony stood,
a like character
some other
Dig.
topic
Dig.
Key
Rep’r
No. Series &
*For
eases see same
and section NUMBER In Dec.
Indexes
by Supreme
denied
o£ error
Court.
† writ
*2
136 SOUTHWESTERN REPORTER
Appeal
similarly
ought
'(§ 1060*)
11.
to have been foreseen
Error
—Harmless
by defendant.
Improper Argument
Error —
of Counsel.
Though
argument
a certain line of
for the
Negligence,
cases,
[Ed.
other
Note.—For
see
prevailing party
fallacious,
Dig.
Dig.
76-79;
Cent.
§§
§
Dec.
62.*]
appellate'
will not be reversed where the
Explosives
8*) Liability
6.
(§
view the
entire record
of Carrier
—
appellant,
remarks were
—Proximate
Cause.
any way
company delivering
jury.
car con-
railroad
a
A
influenced the
taining
consisting
small
fireworks
cases,
Appeal
[Ed. Note.—For other
see
packages
anticipate that,
if an
Dig.
was bound
Error,
4135;
Dig.
Cent.
§
§ 1060.*]
Dec.
explosion
occurred
car from
(§ 99*) Damages—Excessive
12. Death
Re
concussion,
—
result,
a
and that there
fire would
covery.
explosions,
would be a continuation of small
company negligently
Where a railroad
department
and that the
be called
fire
containing explosives
place
a car
at a
upon
might
extinguish
fire,
subjected
in its
cussion
owing
where it would
con-
explosions;
result
to the firemen from
through
impact
cars,
of other
negligence
handling
roughly
and hence its
concussion,
a fire broke out in the
explosion
the car
a
which resulted
car after an
con-
a
proximate
in the car was
cause of
car,
plaintiff’s intestate,
tents of the
approached
the death of a
to
car
fireman who
engineer
the fire
was killed
extinguish
fire,
a fatal
received
endeavoring
an
the
extinguish
while
from an
recovery
820,000
a
from the rail-
cases,
Explosives,
[Ed. Note.—For other
company
see
road
for his death
excessive.
held
Dig.
4, Dig.
Cent.
§§
Dec.
§ 8.*]
[Ed.
cases,
Death,
Note.—For other
see
Cent.
Dig.
125-130;
Dig.
§§
99.*]
Explosives
Dec.
§
Injuries
—
8*)
(§
7.
Ex
from '
plosives Contributory
—
NEGLIGENCE.
Appeal
Court,
from District
Harris coun-
containing
Where a car
set
fireworks was
ty;
Judge.
Kittrell,
Norman G.
negligence
on fire
railroad
of defendant
Action
company
handling
Amelia
during
and.
m
others
conflagration
explosions occurred, against
a successionof
the Houston Belt & Terminal Rail-
plaintiff’s intestate,
guilty
fireman,
a
way Company
judg-
and another. From a
contributory negligence
approaching
of
car to
plaintiffs,
appeal.
for
ment
Af-
extinguish
interruption
the fire where
(cid:127)
in the
and he believed firmed.
explosives
in the car had been Andrews, Ball & Streetman and A. L. Jack-
ignited.
appellants.
son,
Lovejoy
for
John
and W.
J.
Explosives,
cases,
[Ed.
other
Note.—For
see
Barker,
Dig.
appellees.
Dec.
§ 8.*]
Explosives
Explo
(§ 8*)
Injuries
8.
from:
—
Contributory
—
McMEANS,
Appellees,
O’Leary,
Negligence
J.
sions
Amelia
Ques
—
Jury.
foe
tion
herself,
O’Leary,
minor,
and Irene
a
against
company
In an action
a railroad
suing
friend, brought
her mother and next
resulting
plaintiff’s
for the death of
from defendant’s
intestate
in
this action in the district
negligence
handling
court of Harris
car
a
containing fireworks,
present county,
Tex.,
evidence held
for the death of the husband
plaintiff,
for
guilty
a
a
whether
fire-
father,
O’Leary, resulting
and
personal
Thomas
from
man,
negligence in
injuries
inflicted
him
approaching
extinguish
car
the fire there-
in.
of combustible materials
loaded
Explosives,
custody
cases,
a
[Ed.
car in
certain box
Note.—For
see
Dig.
Dec.
§ 8.*]
Houston
&Belt
Explosives
Explo Railway Company
Gulf,
8*)
Injuries
(§
Colorado & San-
9.
—
Company,
sions —Persons Liable — Evidence.
ta FS
in the
of Hous-
against
company
In an action
railroad
a
ton,
injuries
company
and a terminal
to a fire-
plaintiffs’
pe-
first amended
attempting'
extinguish
man while
a fire in a
containing
tition,
had,
having
explosives,
alleged,
on which trial was
car
the fire
re-
employés
sulted from the
of substance,
prior
long
date of
company handling
the terminal
evi- injury
was and had been
community
dence
terest in
show
held
engineer
the fire
respect
place
at the
switeh3'ards
joint city Houston,
where the fire occurred
pow-
as to authorize a
with all the duties and
judgment against defendants.
imposed
vested
ers
cer-
cases,
Explosives,
[Ed. Note.—For other
see
city, establishing
tain ordinances of said
Dig. § 8.*]
Dec.
maintaining
department, embracing
Appeal
(§ 1066*)
and Error
powers
going
the duties
aiding
—Harmless
fires
Error —Instructions.
extinguishment
same,
company
In an action
a railroad
general supervision
firemen,
company
and a terminal
death
a fire-
police
attempting
powers;
man
and with various
that on
a fire in
containing explosives,
re-
day
November, 190S,
22d
the defendants
sulted from the
the
city
tracks,
of Houston and
terminal
company
placed upon
prox-
their side
close
erroneous instruction must find
car was
that the
of the railroad
imity
buildings
to residences and other
company
ground
was not
for re-
city,
at a
was fre-
which.
versal, where,
companies
case,
facts
both
public,
quented by
load of
inflam-
the death.
explosive material;
mable
cases,
Appeal
[Ed. Note.—For other
see
Error,
Dig. Dig.
§
Cent.
Dec.
the defendants
said ma-
§ 1066.*]
topic
Dig.
Dig.
Key
*Eor
cases
Rep’r
see same
and section NUMBER in
Series
Dec.
No.
Indexes
TERMINAL RY. CO. O’LEARY
BELT &
special
(3)
great conflagra
ignited,
denial that
lerials were
conflagration
imminent;
and
of
tion was tlien and. there
any wrongful
performance
act on
of defend
official
:said
(cid:127)duties as chief
ants;
special plea
together
engineer,
*3
alleged negligence
of defendants was remote
went to the
of the fire
members
injury
conflagration;
in
its relation
the
and death of
scene of the
O’Leary,
diligent
prevent
said Thomas
Thomas
and
that “the
and
earnest effort
prior
approaching
explo O’Leary,
spread
of
the time
the
of the flames an
car, knew
of
sion of
the
the ear
the
and realized the existence
some of
contents of
oe-
conflagration,
explosive
(cid:127)eurred, knocking
O’Leary down, the
and of
the
the
said
bruising him,
causing
wounding
dition and tendencies of the
of said
and
and
in
contents
prior
approaching
at and
ear
the
to the time of
from which
on
24th
afterwards
the
coming
day
O’Leary
same,
December, 1908,
and
contact with said
of
the said
that,
danger,
notwithstanding
petition specially alleged neg
and
such
And said
died.
knowledge
prox
opportunity
ligence
part
know
and
of defendants
the
condition,
O’Leary
injury
death,
the said
facts and
voluntarily
Thomas
imate cause of
and
as fol
as
the
danger,”
they omitted,
encountered the
and
lows:
“That
as soon
the
voluntary
place
yard,
act of the said
thus the
car was received in
said
the
intervened,
unloading tracks,
and became itself the immediate
same
their
where
the
there would
the
proximate
injury
danger
death,
of
cause
his
and
no
and
have
of
been little or
alleged negligence
but,
exploded;
and the
of defendants
in
contents thereof
injury
stead, kept
“was remote
death of
far
sions and the
its relation to
and
the
car for an unreasonable and
the
* * *
,
that,
unnecessary
thickly
deceased,
length
and
of
in
midst’ of
set
time
they
concerned,
part
engines
city,
said
tled
of
injury
containing large quan
cars,
of deceased
and death
the former
-and
fire,
were the
evitable
and
result of
unavoidable
and
of the latter contain
tities
some
of
they
accident,
ing
freight,
no
are in
which
and which were con
inflammable
guard
switched,
stantly beibg
wise liable.”
without
jury, and re-
The case was tried before a
said car to see that
or watch
plain-
ignited,
and
and
sulted
tiffs
a verdict
contents were
otherwise
defendants,
$20,000,'
though
from which the
or
the car as
it contained
(cid:127)dinary freight,
motion for new trial was heard
of
after their
and
and the contents
the said
overruled,-
appealed.
explode
fire commu
have
-car were caused to
charge
Appellants
engines
requested
from
said
and
the court
nicated thereto
by
favor,
bringing
concussion as a
of
en
in their
to return
verdict
the
and the refusal
therewith,
gines
and cars
of
court to
in contact
unnecessary force,
or, if the
of
and
made
basis
first
proposition
explode in
as-
Their
under this
contents were not
error.
signment
first
caused
O’Leary,
manner,
keeping
hav-
“Tom
is as follows:
then
danger
place
ing
position
on de-
time and
of
car
entered the
at
railroad,
a nui
without
constituted the same
and
manner done
fendants’
invitation,
defendants,
contents,
express
implied,
sance,
fol
and the
conflagration,
un-
results that
most a mere licensee
were
was at
lowed
anticipated
law,
which
the rule
and not within
should
der the
employes
agents
have
and
owner of
said
and their
would
reasonably
ordinary
there-
invited
care
the circum
safe for those
exercise
them
;
de
resulted from
members of the fire
on and the
stances, and
freight
including
thereof,
necessary
which de-
partment,
would
accept
legally
fire,
and
bound
fendants
transport
be drawn to
said
'being
protecting
deliver,
same,
(cid:127)extinguishing
(cid:127)surrounding property,
and
and
gross
wrong,
probably
proof
negligence,
wanton
willful or
would
defendants,
caus-
ignorant
contents of the
on
therefor,
they
injury, they
injury
to which
would
thereof,
in their
favor
exposed
peremptory instruction
given.”
notify said
the contents
been
third
failed to
have
should
they
proposition
contend
By
warn him of
or to
(cid:127)of
evidence
members of
the other
the de
“the
which he
that
after the
negligent
alleged
attempting
defend-
partment
acts of
ex
would incur
to_
pro-
based,
tinguish
ants,
this action
as was their
the said
explosions
dangerous
readily
do,
could
have done.”
their effect
duced
continuing
general demurrer,
defendants,
begin,
made the
after
O’Leary,
general denial; (2)
manifest,
by pleas
.answered
situation
the occurrences and the
of Thom
full
dangers impending,
voluntarily
position
safe-
his
left
and care
.as
election,
knowingly,
ty,
en-
lessly subjected
his own
himself
to
himself
peril
position
at which he en-
tered
him;
explosion,
injury
such volunteer act
-whereby
was inflicted
countered
136 SOUTHWESTERN REPORTER
persons
required
the
at such times with sole command
bers
might
with the
ceased
At this time the
ton turned in a fire
nected
plosion
wrecked,
p.
located,
followed thereafter
sions,
contents to be come
the track where the car
thereafter to
the track convenient
the scales track.
Company
in
indicating
the
ton Belt & Terminal
ploded
by
dence
switching
p. m.,
gress
causing a collision of the car with
The car had a
loaded with
presented
ed was due
tents of the car
corporate
ants of
arrived
have
ligence
car loaded with
where
following
contained
o’clock
cause,
came itself
Saturday,
South
portion
m.
concussion,
another track so that
extinguishment
Ms
crew
city,,
brought
Sunday,
engineer
occurred,
break out
Street
switching
Yard,”
injury,
yards.
without
it
part intervening
evidence
of some
a. m.
of defendants remote
in what is
to take
this car was
fire
intervals,'thus
remained
day
explosives
conclusions of
defendants
limits of the1
duty,
personally
department
fire
explosives,
might
the Houston
the next
Yard,”
by spontaneous
located
engaged
ears,
before
commenced a
and not
but we
way
of the
tag
The
car in
thus
concussion
proper
what is known
crew
fire
various
Between 2:30
contents
was such as
on
propositions
deceased, O’Leary,
thereof. He was
was to be
car also had
the contents of
by frequent
until between 11
known as
alarm,
with the
and this caused an
department
leaving
was known
ignited
O’Leary’s
accordingly placed
employes
it
scene
south
conclude
Railway
negligently
day,
present,
measures
actionable in
attend
22d,
between
record
hereafter mention
fact on the
kinds of
switching
of fireworks
city of
consumed.
brought
Belt
yards.
scales,
it ran
Sunday,
and east of
the
the
while
and all
ordinances
in its relation
defendants
combustion or
all
conflagration.
city
the “Houston
weighed
injury,
“city track,”
this
could
Company
justifies
quoted:
superintend jury
the car and
of mem
fact that W.
supervening
city
ultimately
fires that
the Hous
kicked
known
the
a switch
The
fireworks
tag
of Hous
violently
Houston,
3 o’clock
when
cars
the de
law.”
vested
alleged tinguishment
it
limits. R. A.
be ex
After ble
issues
“Con
on
serv
was a mere
it on
was to
con
ana
cars decisions. But in all
con
neg-
2:30
and cases
ex-
evi
box
ex were
the
be-
On
12
it
it
it
held that
another,
duct himself
plain
tor owes no
excavation are omissions which
ing
negligence
turntable,
no case that
ises is
pany
our
Tex.
turntable,
sought
for
as
dition
covered
neither
there.
been
amined the
St.
knocking
pellants
the
for
tion
injury
ger
lent
7 W.
When
way
death.
toward
a block or
eral directions to other members of
ville v.
hurriedly
and,
preservation
ordinances,
S.
instance,
to a licensee who while
Rep. 856;
28,
injuries
owner
party injured
attention has been called has it been
therefrom.
failure to insulate
gotten
perhaps
of same
60,
Company
68,
when
But it
existence, and,
v.
piled,
water,
recognized
if
cited
(N. S.) 979,
injured,
lawful
was not at
Greenville v.
grew
This
Oil
Pitts,
which afterwards
expressly
Morton, supra;
trespasser
cotton seed
41 S. W.
invoked the doctrine
even as
36 S.
756,
he be
him
as in
to cover a
premises,
in his
two,
lie
upon
Company Morton,
within some
injuries
rightfully upon
as in
has been
as to their
occasioned
doctrine is
out
as the uninsulated electric
we have examined or to which
as in
than
premises
when the
proprietor
102 Tex.
premises existing
right,
arrived within the
or the manner in which ties
their briefs to the
v.
down,
W.
order,
heard the fire
Railway Morgan;
afoot,
left his
injured
aof
fires, protection
regulations respecting
this state
licensee,
Morgan,
proprietor
62,
proprietor
132
nor
430,
buggy
or near the
entered
Railway,
or licensee cannot com
conveyor,
Dobbins v.
and when the owner has
for which
but
as to
38 R.L. A.
permanent
Am.
v.
protection against
often
Pitts;
conveyor
applied
after
conditions then exist
impliedly
2,
is not liable to others
that had
32
sound,
by
person
injure
buggy
the excavation filled
proper conduct,
Rep.
v.
107 S. W.
toward the
observance
cases we
St.
producing
L. R.
wire,
the unsafe condi
him,
upon
held that where
or 15
some affirmative
resulted
giving
or his servants.
that he
consequence
stated Green
as in Oil Com
alarm,
Rep. 843,
611,
has the
damages
in the Texas
facts
and has often
receiving
Edwards,
or to
or fixed con
Railway,
70
be held
at the time
573,
invited him
A. 825. In
them,
preceded
distance
feet of the
unguarded
effect
ordinarily
and other
102,
*4
more vio-
proceeded
Tex.
in
property,
have ex
50,
guard
proprie
he went
of dan
66
the
in
fill
prem
scene,
46 S.
14
such,
wire,
Rail
laws,
fires.
Am.
gen-
403,
lia
un
in
of,
90
91
it,
L.
y.
605
BELT & TERMINAL RY. CO. O’LEARY
poses
tive
jured by
present
state
right
using,
his active
applied,
ward,
ing
his
not so
pellants’
proposition,
so.
Harriman
tions
stances
cause of the
tered
must be held to
true
explosions
the act which caused the
voluntarily
ed,
one,
though
the direct
sion
the act of
mitted at the time of the occurrence of each
of such
ligent
plosion,
cumstances
bring
gerous,
instanced. Can
other?
been coexistent
ent as
whether he arrived after the
such as an
discussed would
assent.
E.
O’Leary’s
sions will be
[3]
entering
so that each
employés.
servants
caused the
negligent
so that whether
where a
of the contents
occurred and was then
the defendants’
Clearly
words,
of his
It seems to
it within the
employes)
Am.
conceded,
act committed
car as to be
a licensee at the time the
brings
Appellants
and followed
conditions,
the condition
concussion
other,
contention, presented
themselves
injury
and immediate act
O’Leary
negligence.
ordinary care,
detailed was
Phillips,
was caused
above
unguarded
own,
which
Railway,
this condition
that,
O’Leary
regarded
Eng.
existence of
negligent
Civ.
licensee has entered
act which caused
act,
us
committed before
attendant
not because
Washington
with the
subsequent
St.
have continued
we hold that
rendered the
apply.
it be
was not a
railway company
facts of
be conceded that
himself in
quoted,
contend,
which must be treated as
therefore,
but
App.
Enc. of
injured by
then created
resulted from
764;
reason of
injured by
O’Leary
a consideration of
rendered
subsequently occurring,
premises;
reached
placing
injured O’Leary.
because of
railway company
as
excavation,
which
act of
by
To
explosions (conced perintend
results.
result that' follow
Ohio
Railway
the track for
Law, 1136,
licensee, and, if
of the existence
ear
fixed conditions
unsafe,
first,
this we
concussion
permanent
63 S.
which resulted
had been
rule has
himself in
effect,
the rule first
he
in their third lows: “The
proprietor
the rule
them
cases
St.
Railway,
related
starting the
In both
case
resulted
but this
injured,
O’Leary
was.
first
but was
continuing
effect
negligence tervening
scene,
been com
proximity
v. Wood were
W.
etc.,
O’Leary
one
affirma
the cir
See,
unsafe,
do
*5
danger, They
explo 162;
pres
have
back
been
dan
pur
neg
first
that,
por
one,
yet
act
ex
ap-
en
be
al
al
N.
90
In
or Railway,
To this we cannot
thus
known
packages,
not
but that the
without which
and defendant was
edge
which
fendants
perhaps
guished.
place
plosion
ligence
contents of
foreseen
ly
connection
act
always
sions would start a
partment
would
sequence
to and
would cause a
others to
gently causing
causal connection
sions would follow
gence
quence
O’Leary
or some
have
separate
second
der their
of them the ordinances
come
came
eration
case
that
into
This
[6]"We think
Railway,
to be set off
O’Leary’s injury
contained fireworks
would be communicated to another.
leaving
In
charged
person
Gonzales
reasonably
required
also knew that
once occur
has caused it as the
that an
probably
of such
proposition
brings
intervened between defendants’
and
is:
circle or
O’Leary
determining
of natural
position
peril
and other members of the fire de
remote
of others unless
The car was within the
in obedience to the duties
of such
packages,
first
ignite,
act which will break the causal
person
the car were
between the
Ought
Bigham,
subsequent injury,
O’Leary’s injury,
ignition
similarly
public
not broken.
where he encountered
with the
us to a
O’Lpary
assignment,
extinguishment.
conflagration
must have known that
it would not have
scene,
negligence?
of a like character to some
party
to attend in
and that successive
between the
foreseen that
range
314,
so situated as to be with
Galveston,
its relation to the
urged by
explosions
injured
chargeable
of defendant
agree.
ordinances of the
under the facts of this
conflagration,
of one
the character
as the
laws.
concussion.
fires,
and death
cause of the
situated
injury complained
38 S. W.
whose,
consideration of the
entered
such
of the whole would
explosive,
original wrongful
evidence
must also have
and made it the
promptly
thereby
Washington
of the car and
If
person
under the
appellants un-
alleged negli
that resulted
and thus be-
probable
so,
voluntarily
city
explosions,
caused
Rep.
cause,
ought
Being
and that
of an in
then the
question
required
injury.
injury,
as
knowl-
of de-
limits,
repair
would
explo-
explo
extin-
negli
Seale
like-
neg-
one,
city
fol-
op
ex-
su-
se
REPORTER
136 SOUTHWESTERN
body
hose,
up along
and seen a
of the crawled
Re knew
after
were receive^,
hose,
it,
lying
and it
peril,
he
left of the
avoid
warned to
had keen
Handon,
guilty
was a
of doe
fellow
the name
as
of law
matter
Chief,’
says,
he
negligence,
reckless and
‘Where is the
I
such deliberate
fellow,
say anything.
public
assumption
didn’t
There was a
service
of risk
man,
recovery
I
preclude
ac- he looked to
a railroad
don’t know
from defendants
was,
O’Leary
negligence.”
arms
who he
about the
It was
count of
shown
”
* * *
testimony that,
dragging
fire and
him.
after the
[7,
O’Leary
sounded,
8]
If
situation was such at the time
hurried
alarm was
O’Leary
buggy,
explosions
of the conversation between
scene of the
upon
ordinary pru
arriving
a block or Anderson
distance
pro- dence,
O’Leary was,
buggy
circumstanced as
would
left the
from the
two
From the
car on foot.
have believed that no more
toward
ceeded
time
explo- occur,
ordinary prudence
O’Leary
fire the
and if-a
started to the
ap
and evident-
have
numerous
was would
loud and
sions were
O’Leary did,
witness,
employs proached
ly
the car as
then
One
him.
heard
just
contributory neg
guilty
before
was not
testified
ligence.
buggy
a warn-
think
Ander
shouted
We
the evidence of
left
going
near
too
son was
sufficient to make the
him of
that,
jury,
employs
testified
and their determination of
another
O’Leary approached
called out
here made
contention
pow-
out,
pellants
liable to be
look
us.
him: “Better
is conclusive
to
der
enough
Anderson,
disposes
car,”
loud
of the issue
that he “hollered
also
in that
This conclusion
presented
L.
me.” A.
sec-
him have heard
risk
of assumed
O’Leary’s
proposition.
chief assist-
who was
ond
disposing
appel-
got
ant,
“I
as follows:
have
What we
testified
disposes
O’Leary.
up,
and he
He came
also of
Mr.
first
before
lants’
*6
third,
fire.
about the
had
conversation
both of which
over-
and I
this
second and
the fire had
of that conversation
time
ruled.
At the
not left
originally.
assignment appellants
By
it was
con-
the car that
their fourth
regards
judgment
against
existed
condition
tend
rendered
The
that
'
up.
Gulf,
Railway Compa-
came
When
Fé
there when
O’Leary
Colorado & Santa
conversation,
ny
erroneous,
company
I had this
and
is
because said
be-
injury O’Leary
going out of
roof and be-
fore
had
flames were
neath and
delivered
question
the ear. At
outside of
car
minal
Houston Belt & Ter-
on the'
to,
Railway Company,
I walked down
and at the time
that
time
car,
pos-
well,
when we
block from the
it was in the
about a
latter’s
got
yards,
apparatus,
stopped
when he
out session and in its
handled
by
agents
engine
buggy, and as the chemical fireman
the switch
company,
they
down,
pulled
he and walked down
hose
I
said last-named
somebody
together,
him contend under
told
this
that
the lia-
to the fire
there
statement
car,
bility
Gulf,
next to this
these
Fé
was oil
Colorado & Santa
ceased,
Railway Company
I
O’Leary
don’t know where
and that no
cars had oil
it
them.
says
was,
proved against
company
I
that was
says,
and I
was
any judgment against
explosion,
authorizing
‘Let’s
and I
it.
It
scared
this
was
fight
testimony
get
car here and
in from
this
shown
that
the car in
behind
says,
monkey
Gulf,
way,’
he
‘If we
this
was delivered
Colorado
catch,’
here,
says,
Railway Company
oil will
Fé
& Santa
to the Hous-
around
Railway
happen
Company
no more
ton Belt & Terminal
‘There ain’t
21st,
now,
says:
is all out of the car.’ And he
and was thereafter
engine
explosions.
several
I
has been
switch
and
It was
‘There
here,
company.
shown,
and last-named
on the
down
how-
heard them
testimony
ever,
transportation
Dever,
it now.’ So he went
of the witness
ain’t
there
on over to
inspector
get
Gulf,
in behind this other’car that
Colo-
standing
Railway Company,
on another track closer to us rado & Santa Fé
that
burning
get in the
in which the car
car that was
was at
than the
the time
operated jointly
from the oil
and when
shut it off
then,
companies.
line
He
of hose
chemical—
both
the benefit of
witness
up
yárd
chemical line came
follows:
and when
“The
testified
burning
hose further down to the
is
moved
which the
known as
occurred
put
yard.
line on
chemical
the oil
Fé
It was
old Santa
called the
minute,
maybe
‘Congress
However,
wasn’t a
or
and it
Yard.’
Street
it was
minute,
longer
operated by
until
than a
little bit
explosion
the Houston Belt & Terminal.
”
* *
*
happened.
Company’s
He further The
& Terminal
Houston Belt
began
property
didn’t see Chief
until
“I
line
at what
testified:
about,
is known as
guess,
(after
post
I
three minutes
ex-
is,
mile
miles south Houston
49—that
three
four
smoke,
plosion)
it blowed Roman
the main line of
up
pretty
street,
near Rusk
I
candles
Fé—and the
Santa
Belt & 607
& TERMINAL BY. CO. O’LEARY
BELT
v.
sustained
joint operation
was another
rial and harmless.
instructed
just
posed
minal
general
S. W. 486.
Houston Belt & Terminal
treat as
lingham
way.
both
Belt & Terminal
companies
151,
152,
The
also the fifth
line
over the
charging that the
ear
operated
ployés
Whenever the car
had no
that
It would
of that
combination;
The witness
was,
out of town
merit
were the
amount
as soon as
expanse
territory.
appellants.
We
onto
of it. The
Company,
handled
“It would
all of the track
pleadings
S. W.
authorized a
manager
separate yards
think this
Gulf,
come
being proved
were answerable for the
Croskell,
Crank,
assignment
yard
444; Railway
of the court’s
that is South
business
jury upon every
assignment,
altogether.
their name
instructed
Gossran,
directly
Colorado & Santa
terminals,
testified
defendants’
the court
Company
inbe
Railway Dorsey,
plaintiffs
Gulf,
prorated
also that
testimony,
the Houston Belt
hit the
joint judgment
evidence,
done
Colorado & Santa
each line did.
of said
yards,
off of the
employés.
from the Houston
Railway
hit the
both was immate
.possession of the
in this
overruled,
which
fully
* *
Civ.
because
yard.
onto our
belonged
yards,
yards,
various
Jones,
joint
the error in tiffs,
companies
clerk to
issue
App. 160,
”*
terminals.
That
complains
city.”
car came
Santa
Company
Fé Rail-
damages
basis
wherein cussing
expense.
we dis-
If both
assign-
its em-
clearly
should
raised
to the said
There it would serve no useful
as is it has
rails.
yard
Ter-
was
was
Dil
Fé
Fé
not in
motion for a
ion
such remarks were
either in
The conclusion we
say that
sympathy,
of certain
return a
sel
proper.
fluenced
of the court to
fixing
dict for the
but
ease was
v.
ments which
now
pellees
ord
raising
or that
portions
special charges requested by appellants,
firmed.
appellants,
Affirmed.
In our
[12] The verdict was
We have
[11]
Davenport,
a conclusion as to the amount.
we cannot
that such
inor
assignments
The
been so
hold.
As an
the same
On
it was so excessive as to indicate
returning
award. The twelfth
fixing
remarks
verdict
or other
remarks
amount of their
wise influence the
point
concluding argument
carefully
jury
Motion
rehearing,
*7
view the
concluding argument
ordered.
predicate
Houston Belt & Terminal Ry. Co. v. O'Leary
136 S.W. 601
Tex. App.1911Check TreatmentAI-generated responses must be verified and are not legal advice.