Smith v. Payne

26 Ga. App. 685 | Ga. Ct. App. | 1921

Lead Opinion

Hmn, J.

(After stating the foregoing facts.) In our opinion the plaintiff failed to sustain the allegations of the petition so far as the alleged negligence of the Director-General of Eailroads was concerned, either separately or concurrently with that of the eodefendant, the Eeed Oil Company, and therefore the judgment awarding a nonsuit as to the Director-General was correct. The evidence failed to show that the defendant carrier knew that the car contained casing-head gasoline, and there was no circumstance putting the carrier on notice that it contained anything except ordinary commercial gasoline,— the kind that was ordered by the Eeed Oil Company and the kind that was shipped in the tank-car, according to the way-bill for the car itself. All the labels on it indicated that it contained ordinary commercial gasoline, for there was no special label, as required by the regulations of the interstate-commerce . commission, indicating that it contained casing-head gasoline. The evidence showed that casing-head gasoline was a much more dangerous substance than ordinary commercial gasoline. The evidence did not show that the defendant carrier knew of the location or the existence of the vulcanizing plant kept by Thomas. The mere fact that it was located near the tracks of the company was not sufficient to put the railroad on notice of its proximity. While the evidence shows that there was a stove in the vulcanizing plant of Thomas, in which a fire was constantly kept, it failed to show that this stove was not kept closed except when opened for the purpose of putting in coal; and the evidence shows that there was no open furnace or open fire maintained in the vulcanizing plant. The distance from the car to the boiler or stove in which Thomas kept this fire does not appear from the evidence. He kept the boiler or stove in the building, which was 30 odd feet long, but what part of the building it was kept in does not appear. The evidence shows that the car was closed, that the carrier thought it contained ordinary commercial gasoline, and that if this had been true there would have been no danger whatever in locating the car where it was placed in the rear of the vulcanizing plant. There was no evidence whatever tending to show that at any time prior to the explosion the tank-car had leaked or had emitted gases or fumes or given any indication of interior pressure or that its contents were vaporizing or seeking avenues of escape; and there was no evidence showing clearly at what time the car had been placed in the rear of the Thomas plant, and the evidence affirmatively shows that the defendant carrier did not violate any of the regulations of the interstate-commerce commission, and it does not appear that the carrier knew, or could have known by the exercise of ordinary care, that there had been a violation of the regulations in reference to the casing-head gasoline by the shipper of the gasoline in not placing on the car the special red label indicating the presence of this character of gasoline, all of the labels indicating that it contained ordinary commercial gasoline. The carrier had not delivered the car to the Reed Oil Company, and had not given consent for the Reed Oil Company to open the car for the purpose of taking samples or for any other purpose. There was no evidence indicating that the defendant carrier knew of Hyde’s presence on the tank-car, or of his efforts to take samples from it, and, so far as the evidence discloses, there was nothing that tended to show that the defendant carrier, in the exercise of ordinary diligence, could have found out that the Reed Oil Company, before it had notice of the reception of the car and before the car was delivered to it, would send its agent to the car for the purpose of taking samples therefrom, and certainly no evidence of any circumstance showing that if the Reed Oil Company attempted to do so, it would attempt to procure these samples without finding out, through the valves, as required by the regulations of the Interstate Commerce Commission, the condition of the gasoline inside, whether it was vaporizing or whether the pressure was great or dangerous.

After a very careful examination of the evidence, in connection with the allegations of the petition, we think it clear that the plaintiff failed entirely to make out a case of negligence as alleged against the defendant carrier. Entertaining this view, we do not consider it necessary or proper to go into the question of what was the proximate cause of the explosion of the tank-car and the resulting death of the plaintiff’s son, as we are informed in the record in this case that the Reed Oil Company, against whom a verdict was rendered, has filed a motion for a new trial.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

Stephens, J., concurs specially. Jenlcins, P. J., disqualified.

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Concurrence Opinion

Stephens, J.,

concurring specially. I concur only in the judgment of affirmance.