137 F. 557 | 8th Cir. | 1905
This is an action to recover damages for personal injuries sustained by the defendants in error (plaintiffs below) by reason of the explosion of gasoline on the 24th day of December, 1902, in the basement of what is known as the “Turf Exchange,” at Hot Springs, Ark. At the time of the accident the.Turf Exchange was under the control of the defendants Chambers & Walker as partners, on the first floor of- which was conducted a saloon, and a room in which pools on races were sold. The defendant Arkansas Gas Company (hereinafter for convenience called the “Gas Company”), under contract with Chambers & Walker, constructed in the basement of said building a plant for lighting the building with the product of gasoline. The tank for holding the gasoline was let into the cement floor by sinking it about 6 inches, and was about 6 to 6)4 feet long and 18 inches in diameter, and held about 67 gallons. It was placed horizontally between what is known as the engine and the coal house, with about 6 inches between the mound of the tank and the respective walls of the two rooms. The mound around this tank was made of two layers of brick laid on edge and cement plaster, and plastered over with a thick layer of cement, so as to form a smooth, arched mound, 7 to 7)4 feet long, and 12 inches above the level of the area floor, which-practically filled the space between the engine house and the coal shed, with a slope towards each. The generating machine was located in said engine room, which was. about 7 feet by 7 feet'in size. There was a granitoid paving floor in said engine house, and the house was raised on blocks 2 or 3 inches above .this pavement, so as to leave a space between the superstructure of the engine house and the granitoid pavement. The coalhouse was. about 8 feet long and 7 feet wide—a rude wooden shed—the éasfiwall of which was double, next to the outside wall, where the receiving box hereinafter' mentioned was located. The bottom of
The gas machine plant consisted of an engine and generator. The storage tank had pipes connecting it with the engine, as also a line of pipes connecting the tank with an iron receiving box on the' sidewalk on Exchange street, outside of the retaining wall. Through one of the small iron pipes connecting the tank with the generating machine, the machine automatically drew from the tank its supply of gasoline, and through the other discharged back into the tank any surplus fluid. To the top of the tank there was also attached, near its south end, an upright iron pipe, a few inches long and V/2 inches in diameter, which is known as the “T pipe,” or the “upright T pipe.” The upper end of this pipe had threads cut in it, and was fitted with an iron cap, readily screwed off and onto the pipe. Inside of the tank was a “float,” with an upright wooden stick, less than an inch in diameter, which extended through the upright T pipe for the purpose of- indicating the quantity of gasoline there was in the tank while the latter was being filled. With the cap off the upright pipe, the end of the stick would rise up out of the pipe as the gasoline was run into the tank. When the tank was full this stick would stand about 6 or 8 inches out of the pipe, and when empty the end of the stick would be flush with the end of the pipe. After the tank was filled the stick could be pushed down, and the cap screwed on the end of the pipe. This pipe was to be kept closed, except when the tank was being filled, or it was desirable to know how much gasoline was in the tank.
The line of pipe connecting the storage tank with the receiving box was about as follows: The end of a line-of pipe of the same inside diameter as the upright T pipe on the storage tank was attached at right angles to the latter pipe near where it joined the top of the tank, extending horizontally and obliquely with the tank from 3 to 3J4 feet, very near the outside east wall of the coal shed; thence up vertically through the shelves 6 feet 3 inches; thence at right angles with the tank through the east wall of the coal shed to an open space to the stone retaining wall, to a point 12 to 15 inches outside of the latter wall, and 12 inches below the surface of the sidewalk on Exchange street; thence vertically about 6 inches to the bottom of a cast-iron box known as the “receiving box,” and having a V/i inch opening through the bottom, to which
On the 20th day of December, 1902, the gas company had completed the construction of this plant, with the exception of connecting the piping from just above the tank with the receiving box on the sidewalk. On the afternoon of that day, Humphreys, the representative of the gas company who constructed the plant, sent in a teleph.o' e order to the plaintiff in error, the Waters-Pierce Oil Company (hereinafter designated as the “Oil Company”), which had a supply house in Hot Springs, to send to the Turf Exchange a barrel of gasoline; such barrel containing about 53 gallons. The barrel was accordingly sent, in charge of one Murray, the deliveryman of the oil company. This barrel was carried down to the sidewalk at the Turf Exchange, and the transfer of the gasoline into the tank was effected by siphoning it by means of a rubber hose into the T pipe. That evening the lighting plant was put into operation, and the building was thereafter so lighted until the time of the explosion hereinafter mentioned. Between the 20th and 24th of December, 1902, the connection of the tank, by piping, was made with the receiving box, when Humphreys claimed that the contract of the gas company with the Turf Exchange was completed.
On the afternoon of the 24th of December, 1902, a telephone order was sent in to the oil company for a barrel of gasoline, to be delivered forthwith at the Turf Exchange. Accordingly, about A o’clock p. m., said Murray arrived with the barrel on the delivery
There are other'important facts bearing upon the questions involved in this review, which will more fully appear from the following discussion.
“The defendants, acting together and in concert, through their agents, servants, and employes, then and there wrongfully, unlawfully, carelessly, and negligently proceeded to transfer said gasoline from the vessel in which it was carried to said lot, and to store the same in said tank or vessel situated on said lot, and in so transferring said gasoline the said defendants wrongfully, unlawfully, negligently, and carelessly- allowed a large quantity of gasoline to leak, escape, and run on and under the floor of the building, and unlawfully, negligently, and carelessly allowed and caused said gasoline to explode and wreck said building, and inflict great and serious injuries to the persons then in- the building;” describing the injuries received, respectively, by the> defendants in error.
As the two cases grew out of the one accident, and depended upon the same state of facts, by consent of parties they were consolidated for the purpose of trial, and were tried to the same jury. The jury returned a verdict in favor of Van Elderen against the oil company and Walker & Chambers, assessing his damages at $12,500, and in favor of Gaskins against the same parties, assessing his damages at $3,000, and returned a verdict in favor of the defendant the Arkansas Gas Company.
To reverse the verdicts against the oil company and Chambers & Walker, they brought the case here on writs of error. While there were separate writs of error sued out by the respective defendants below, they were directed to both judgments. - The cases are submitted here on briefs of the respective parties, as well as on oral argument. In the brief filed by counsel for the defendants in error, for the first time, the question is raised that there should have been separate writs sued out by each of the plaintiffs in error against each of the defendants in error, and therefore the writs should be dismissed.
It may be conceded that although the two cases, for convenience and economy, were consolidated for trial, and are covered by one bill of exceptions, yet, where there are separate verdicts and judgments, they are so independent of each other as to require separate writs of error. Louisville & Nashville R. Co. v. Summers, 125 Fed. 719, 60 C. C. A. 487. But there are two considerations apparent in these cases which should disentitle the defendants in error to the benefit of this technical objection. The writs of error were sued out on December 30, 1903, and the transcript of the record and proceedings was filed in the clerk’s office of this court February 29, 1904. On the 18th day of March, 1904, the parties, by their respective attorneys, filed herein the following stipulation :
“Waters-Pierce Oil Company, Plaintiff in Error, vs. Johannes Van Elderen et al., Defendants in error. (No. 2,0-42.)
“R. O. Chambers et al., Plaintiffs in Error, vs. Johannes Van Elderen et al., Defendants in Error. (No. 2,043.)
“It is hereby stipulated and agreed by and between the parties to the above-entitled causes that the writs of error therein may be considered and treated as a single; writ of error; that the record in the two causes may be printed, considered, and treated as one and the same record; and that the two causes may be argued as one cause.”
The oil company seeks a reversal of the judgment against it on the ground that the trial court should have directed a verdict for it on the evidence. This has necessitated a thorough' examination of all the evidence. The whole controversy, in its last analysis, ranged around the question as to whether the gasoline escaped after it reached the tank, or whether it occurred at the receiving box. If it was because of the faulty construction of the pipes or the tank, the gas company was liable. If there was no such defective construction, then it is insisted by defendants in error that the injury was attributable to the negligent acts of the two servants, Murray and Harris. To warrant a recovery against both the oil company and Chambers & Walker, the evidence must show satisfactorily that their acts of negligence, if any, co-operated concurrently or in continuous successive order, producing a common result. With the construction and operation of the gasoline tank the oil company had nothing to do. Its first connection with it was on December 20, 1902, when Murray delivered the barrel of oil on request of Humphreys. From instructions then given by Humphreys to Harris, the latter was given to understand two things: First, that the next delivery of oil would be at the outside box; and, second, that Harris was to watch the tank on the inside as the agent of the proprietor of the building to receive it. That the order sent in on December 24th by telephone fqr the delivery of the second barrel of gasoline came from the Turf Exchange, there is little ground for controversy. Humphreys testified that he did not send in this last order, and that he left Hot Springs for Little Rock at least two hours prior to the time the order was telephoned to the oil company. That Harris, who was the acting porter at the Turf Exchange, understood that he was to receive the oil, is evidenced by the fact that, as soon as Murray said to him, “I have a barrel of gasoline for you,” he said, “All right.” By their verdict against Chambers & Walker, the jury found that Harris was acting for them. And as defendants in error insisted below that Harris was the servant and agent of Chambers & Walker, they are estopped from disputing this fact.
The cross-examination of this man Humphreys shows that he was not an expert in the matter of using the siphon under the conditions which existed at the time of the delivery of the last barrel, and that his statement at this trial was mere matter of speculation. The following excerpts from his examination speak for themselves:
“Q. Did you tell him [Murray] never to use a siphon? A. I told him to use a rotary pump. Q. What did you do that for? A. Because I thought it was the proper way to put the gasoline into the tank, because with the rotary-pump you can control the flow of the gasoline—put it in fast or slow. Q. Had you ever used a siphon before that time? A. Yes, sir. Q. When was that? A. I don’t remember exactly. Probably In my other testimony you attempted to pull it out of me. Q. X. am asking you now when and how you used it? A. I don’t know the exact date. Q. Had you used it several times?*565 A. Several times. Maybe once or twice. I used it before, and that is all I am going to say. Q. Didn’t you say that you hadn’t used it but once, and that was in making a test? A. I have used it before. That’s all I am going to say. Q. Can’t you regulate the flow of gasoline more readily and stop the flow more quickly with the siphon than the rotary pump? A. Yes; I can stop it quickly by letting it squirt all over my face; but with the pump I can readily control it, and not have it all over my face. Q. If you, use the rotary pump and' hose, can you absolutely stop the flow of gasoline instantaneously? A. It will not be necessary for the hose to be full. Q. After you have stopped it, won’t there still be all the gasoline the hose did hold, to go through it? A. I had my hand over it, using a siphon, and got it all over my face. Q. The reason that you didn’t want the siphon used is that the flow would be too great and discharge the oil too readily? A. My objection ■was that it should be squirting around after it was discharged. With a pump you can stop it before it goes into the hose. Q. I am asking you for your reason for not using a siphon? A. One thing, as I said before, if you raise up the end with it, just as soon as you leave the hole it will squirt right out in the air.”
In this connection the court interposed with the statement that it was useless to ask these questions, as “this is not expert testimony, and the j’ury will judge it by experience and common sense. ■They know, if you turn the hose up, it won’t run out, whatever an expert may say. Expert testimony is only an opinion.”
On the other hand, the testimony of the real experts’ in the case —the men who handled and transferred gasoline from one reservoir to another—was that a rotary pump is used in transferring fluids from a lower to a higher vessel, and a siphon is used in transferring from a higher to a lower vessel. As the witness Humphreys had never in fact experimented with the use of the siphon, and the only fact to which he, in effect, testified was that in disengaging the siphon hose the handler was liable to have the gasoline spurt in his face, no verdict should be permitted to stand, predicated of such imputed act of negligence.
Superadded to all this is the fact that, in the various experiments made with the siphon hose and the rotary pump afterwards from a gasoline barrel through a similar pipe, there was no difference in the effect produced. In fact, this witness Humphreys testified that in the experiments afterwards made by him with the hose and goose neck, without a rotary pump, with a tank properly equipped, there was no escape whatever of gasoline from the tank. It should not, therefore, lie in the mouth of counsel for defendants in error to claim that there was any actionable negligence on account of siphoning the oil out of the barrel into the receiving box.
Again, the uncontradicted testimony of Murray is that at the only other tank at Hot Springs where he delivered gasoline, in delivering it from a wagon into a receiving box, he used the siphon method without any difficulty. The only difference in the two situations was that the latter receiving box was more directly over the tank. But it is not apparent, upon any known law of hydrostatics, how the conveyance of the fluid first through a pipe descending about 12 or 15. inches to the pipe which ran horizontally 7 feet'across the coalhouse, and then through an elbow before it had a direct fall into the tank, could occasion any more reflux movement of the fluid
As the defendants in error insisted below, and the jury found, that Chambers & Walker were liable, it was upon the theory that Harris-was guilty of negligence. He could not have been guilty of any actionable negligence without the predicate that the oil escaped after it descended through the pipes to where its running would pass under the responsible watch of Harris. This proposition unavoidably includes the fact that the oil did -not escape at the box, but after it left it and passed beyond the view and control of Murray, unless the further proposition can be maintained that the oil escaped simultaneously at both points. This latter position involves the double attitude that the oil escaped at the receiving box and also at the tank, and that the two streams, starting from different points, uniting somewhere and somehow, constituted the stream running out from under the engine house, as no other stream was seen or traced elsewhere, and the explosion, beyond reasonable controversy, occurred from the stream that ran out under the door from the engine house through the area. This contention; to our minds, involves presumptions against all the physical facts, and rests upon mere theoretical conjecture.
The only scintilla of evidence touching the overflow of any gasoline at the receiving box was that of the witness Cohen. After several trials had occurred in the courts, growing out of this explosion, this witness, although he claims to have communicated the fact to Judge Teague, counsel for defendants in error Chambers & Walker, soon after the occurrence, is introduced at'this trial, and-stated, in substance, that in the afternoon of the next day after the explosion he was passing by this receiving box in company with a gentleman, a resident druggist of Hot Springs, when they discovered in the box the presence of a fluid, which he thought was perhaps.an inch deep, and that his companion said it was gasoline. He did not examine it, and was unable to say that it was gasoline, but thought it was. To say nothing of the physical improbability that so volatile a substance as gasoline of that depth, which the evidence shows will evaporate in a very few minutes, would be found in this box 22 hours afterwards, if it were conceded that it in fact was gasoline, it is explained by the uncontradicted testimony of the witness Murray that in disengaging the nozzle of the hose from the funnel he spilled some gasoline in the box. In addition to this, the witness Russell, who examined the box on the evening after the explosion, testified that the box was then open, and there was no gasoline in it. Furthermore, the testimony of Murray that no oil escaped at the box while being delivered into the funnel is corroborated by what may be aptly termed the res gestae. It was broad daylight, and he was standing over the box, holding the goose neck in the funnel, and could not help seeing any overflowing oil. It is contrary to the very nature of things that if oil was escaping at the box it would not at once have attracted his attention, and he Would,have stopped the flow. This would.have been instinctive. Again, when Murray heard the outcry from Harris to hold on„he
For the purpose of showing that Murray deserted his post while delivering the oil into the receiving box, and that possibly the oil might have escaped then, defendants in error introduced one Archer, who was in the employ of this Turf Exchange as watchman, claiming to be a constable, and who has a suit pending against these same defendants, growing out of this accident, who testified that just a short time—perhaps five or six minutes—before the explosion he saw Murray in the poolroom. Heaving the credibility of this witness to the jury, it is difficult not to say that as to the question of time, under such circumstances, an honest witness is liable to be mistaken. Murray was in the poolroom, as both he and Harris testified, as he went in there to notify Harris of the arrival of the gasoline. But that he returned to the poolroom after Harris left him is challenged by the physical facts of Murray’s situation. Harris left him holding the hose with the nozzle in the paper funnel when he went down to the tank, and it was necessarily but a few minutes thereafter when Harris called out to Murray to hold on. Murray was then at his post. Necessarily he had to hold the hose with the nozzle in the paper funnel. The nozzle would have dropped from the funnel the moment he let it go. The testimony of Cohen so challenges the common sense and experience as to disentitle it to any consideration whatever.
We are now brought in this discussion to a consideration of the physical facts, which, in our judgment, absolutely forbid giving credence to the theory that the gasoline which ran from under the engine house escaped at the receiving box. There were but two ways possible for the oil to have thus passed from the receiving box—either by overflowing at the box and passing over or through the wall, and traversing the coalhouse, and passing by the south end of the tank into the engine house, or by overflowing at the mouth of the pipe in which the funnel was inserted, and running into the vent pipe, and thence, from the bottom thereof, through the wall, and reaching the engine house, as above indicated. Against the first theory there are insurmountable physical obstacles. The evidence, by an overwhelming weight, shows that the surface around the top of the receiving box was cemented, and so constructed as that the flow of the fluid would have been from the building toward the street. It is true that some witness for the defendants in error testified that, in times of rainfall, water sometimes would run from the sidewalk over this wall into the coal-house. But there was no evidence that' this had occurred after the construction of the cement mound around the receiving box, or that the oil could have run from the box over this wall. Against the other theory, that the oil descended through the-vent pipe, is the uncontradicted fact that the orifice where the funnel was insert
As a dernier ressort, it is contended that the gasoline might have passed through the 15-inch retaining wall, through, the aperture made therein for the passage of the lj^-inch pipe which connected with the receiving box, and that, having passed either over the wall or through it, it was conveyed by a door used as a shelf in that end of the coalhouse to the partition wall between the coalhouse and the tank, and down this wall and underneath thereof, and'thence around the south end of the tank into the engine house. ‘This is a mere theory conjured up in the fertile mind of counsel, without any substantial basis of fact for it to rest on. No experiment was made to demonstrate the fact that a fluid which overflowed at the receiving box would run thence over the retaining wall and down onto this door. No experiment was made to show that any fluid poured into the vent pipe would pass through the hard soil at the bottom thereof through this aperture in the wall, and would thence run on the door. It is true that there was evidence tending to show that the door which was used as a shelf in the coalhouse rested at one end on a shoulder in the wall. To give any color of support to the theory that this rapidly evaporating substance of gasoline could have run the length of the door, and by that means have reached and passed around the south end of the tank, the evidence should have shown that the door lay at such an angle as that the gasoline would run in the required direction, and how it could pass off at the end of the door and reach the required destiny. There is not one word of evidence to establish this essential fact. On the contrary, the evidence is that the other end of the door rested upon some barrels. Whether or not that end of the door joined up against the partition wall of the coalhouse is not shown. If the gasoline had run the whole length of thé coalhouse—seven feet and more—along the door, necessarily it would have passed therefrom down into the coalhouse. The coalhouse had coal in it, with a quantity of débris, consisting of boxes and straw; and beneath the wooden floor of this coalhouse was dirt, the floor of which was lower than the cement floor where the tank and engine house were. Necessarily the gasoline would have passed that way and been absorbed. In addition to this, experiments afterwards made, in which barrels of water were discharged from the outside into this coal-house, showed that not a particle of the fluid escaped from the coal-house, but was retained or absorbed therein. Experiments made showed that, in running down a plank eight or ten feet long the gasoline almost entirely disappeared by evaporation. No explosion occurred in the coalhouse, which necessarily would have been the case, had there been a continuous stream from the receiving box to the engine house.
If the imagination could be indulged to the extent of carrying the gasoline through the wall and onto the door, and down the door over its end to the floor beneath, then to reach the engine house, counsel for defendants in error was driven to the further contention that
The tank reservoir held 67 gallons, and the barrel contained 53 gallons of gasoline. After the delivery from the barrel on the afternoon of December 24th, there were left in the barrel, according to the testimony, about 17 gallons. So that about 36 gallons had been delivered at the receiving box. There were 40 gallons in the tank after the explosion; and if, as the testimony tends to show, there were about 12 or 16 gallons in the tank when the filling began, from 24 to 28 gallons undoubtedly ran into the tank from the receiving box. If that number of gallons ran into the tank, why did not the other gallons run in ? What would stop the flow from the receiving box into the tank, except the filling of the tank, or the escape therefrom after it had descended through the pipe? All the evidence worthy of credence, from all the experiments made, shows that when the gasoline runs through the pipe into the tank, the fact would be indicated by the rising and falling of the indicator stick; .and yet the man Harris, to avoid his responsibility, testified that the stick did not move during the process of filling. This demon
Furthermore, after the accident in question the oil company made different experiments under like conditions, which demonstrated the fact that gasoline conveyed from a barrel at the same distance and the same elevation, and with the same appliances, into the receiving box, descended into the pipes without any overflow at the box. The experiments were not only conducted by the use of the hose siphon, but with the rotary pump, with the same result. To one of these demonstrations everybody at the courthouse, by proclamation, including the counsel for defendants in error, were invited to be present. Said counsel and friends did attend the experiment. There was no interested performance not visible to the eye of the adversary parties. These experiments demonstrated that out of about 25 gallons of oil thus delivered through the pipe into the tank, about 9 gallons overflowed through the T pipe; thus showing how the oil overflowed, and in a quantity that well accounted for the stream of gasoline which was discovered running from under the engine house. Counsel for defendants in error, who was present at this demonstration, entertained the idea that'the oil was being delivered too rapidly, and requested that they slow up with the delivery. This was done, with no different result. After the man Humphreys, representing the gas company, was advised of the effect of this test, he made experiments on his behalf, by which he claimed that it was demonstrated that the oil would not thus escape through the T pipe. No unprejudiced, honest mind can read the testimony respecting the experiments conducted by Humphreys without the conviction that it was unfair and dishonest. The president of his company and a stockholder were the principal witnesses, with a few selected outsiders. He gave no notice thereof to the adverse party, and afforded it no opportunity to observe or criticise the manner of its conduct. He took care to see that the barrel of gasoline was not placed at the same elevation as was the barrel at the time of the accident. He took especial pains to manipulate the hose himself, letting it run a few minutes at a time. One spectator would' look at it for a few minutes and leave, and another would be brought in to observe under his manipulation. His own experiment, however, demonstrated -the fact that during the process of the inflow of the gasoline from the pipe the indicator stick moved up and down.
While it may be said that all this was matter for the consideration of the jury, it does but accentuate the fact and deepen the impression that this whole case, as against the oil company, was made to order. The evidence as against it throughout rests upon conjecture and speculative theories, unsustained by reliant affirmative testimony, and by building upon one presumption another presumption. The doctrine of locus ipsa loquitur, invoked by counsel for defendants in error, can have little force, for the reason that the decided weight of the evidence shows there was another place
As said by Mr. Justice Brewer in Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361:
“It is not -sufficient for the employé to show that the employer may have been guilty of negligence. The evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employé is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”
In Sorenson v. Menasha P. & P. Co., 56 Wis. 338, 14 N. W. 446, which is apposite, it was said:
“When the liability depends upon the carelessness and fault of a person or his agents, the right of recovery depends upon the same being clearly shown by competent evidence; and it is incumbent upon such plaintiff to furnish such evidence to show how and why the accident occurred—some fact or facts by which it could be determined by the jury, and not left entirely to conjecture, guess, or random judgment upon mere supposition, without a single known fact.”
So, in Trapnell v. City, etc., 76 Iowa, 746, 39 N. W. 885, the court, speaking to a like condition, predicated of circumstantial evidence, said:
“While an injury by external force might have caused it to develop, it may also have developed without such cause. Before the plaintiff can recover on account of the expenses and suffering caused, * * * she must establish that the relation of cause and effect existed between the fall and them. But when we look into the evidence we find that it merely establishes a condition which might have been caused by an injury to the breast at that time, but whether such injury did occur is, under it, but a matter of surmise. The existence of a fact is not proven by evidence of a subsequent condition which is merely consistent with its existence.”
Our conclusion is that the court below should have given the instruction requested, directing a verdict in favor of the oil company.
In respect of the verdicts and judgments against Chambers & Walker, no question is made as to the sufficiency of the evidence to go to the jury. The only serious error assigned and discussed as ground for reversal is as to the portions of the charge of the court to the jury touching the responsible agency of the colored man, Harris. This objectionable feature of the charge is as follows :
“Do you find that reasonable diligence was exercised by the person in selecting him—in putting him in eharge—as shown by the evidence; and, if so, did Arthur Harris exercise such reasonable diligence commensurate with the danger of this plant? * * * If you answer either of these questions in the negative, then the party in whose employ he was at that time and in this particular matter is liable, if his negligence caused or contributed to the explosion.”
Other matters discussed by counsel in behalf of Chambers & Walker are not deemed of sufficient importance to further prolong this opinion.
It results that the- judgments against Chambers & Walker are affirmed, and the judgments against the Waters-Pierce Oil Company are reversed, and the cases as to it are remanded for further proceedings in accordance with this opinion.