Erving v. Reistino

448 S.W.2d 707, 1969 Tex. App. LEXIS 2308
CourtCourt of Appeals of Texas
DecidedDecember 4, 1969
DocketNo. 4827
StatusPublished
Cited by1 cases

This text of 448 S.W.2d 707 (Erving v. Reistino) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erving v. Reistino, 448 S.W.2d 707, 1969 Tex. App. LEXIS 2308 (Tex. Ct. App. 1969).

Opinion

OPINION

HALL, Justice.

Charles Ray Erving, appellant, was severely burned as the result of a fire that occurred while he was parking a butane tractor near a butane tank on appellee’s farm. At the time in question, Charles Ray and his family lived on the farm and were employees of appellee. Charles Ray was 14 years of age, and worked part-time during summers, evenings after school, and weekends. He was in the course of this employment when he was burned. Joined by his parents, he brought this action against appellee for his personal injury damages.

Jury trial resulted in findings of several acts of negligence by appellee that proximately caused the fire. The jury also found, in answers to Special Issues Nos. 19 and 20, that Charles Ray failed to keep “that kind of lookout which would have been kept by an ordinarily prudent person” of his age, and that this was a proximate cause of the fire.

Appellants filed a motion to have the trial court disregard the jury’s answers to Special Issues Nos. 19 and 20, and render judgment for them. Appellee filed motions for judgment on the verdict and for judgment non obstante veredicto. Appellants’ motion was overruled, and judgment was rendered on the verdict that appellants “recover nothing.”

Appellants contend that the evidence is not legally sufficient to support the jury findings on issues 19 and 20. In resolving this question, we must consider and may only view the evidence and its inferences most favorably in support of the jury’s findings, and we must reject any evidence and inference which is favorable to appellants’ contention.

The butane tank in question held 500 gallons, and was cylindrical in shape but with rounded ends. It was ten feet in length and ran East and West. It lay on the ground in an open, flat area of the yard and was chocked. Its diameter was 38 inches. A multivalve permitting entry and exit of the liquid gas, plus tank vapor release, was located in the middle and at the very top of the tank. An excess flow valve and a three-quarter inch cut-off valve were joined by [709]*709short extensions of pipe, called nipples, and one of the nipples then screwed into an opening provided in the multivalve. The nipples and valves extended straight out toward the South side of the tank, rather than along the top curvature of the tank with its length. A fifteen foot flexible hose for filling the butane tractors was attached to the extension of pipe and valves. When not in use, the hose was usually kept coiled around the multivalve.

The tractor in question was a “Farmall 560,” the largest tractor on the farm. It operated on butane. It was about ten feet long, and the rear wheels, including tires, were about 63 inches in diameter. Charles Ray was a “good tractor driver” and had been driving this particular tractor about nine months.

On the occasion before us, Charles Ray agreed to help another employee, Charlie Anderson, feed the cattle. The time was late afternoon on a Sunday in early September, 1963. The weather was clear and mild.

After they had loaded a pickup truck with hay, the truck would not start. Charles Ray got the tractor, pulled the pickup, and it started. Anderson, driving the pickup, headed toward the pasture with the hay, and Charles Ray trailed with the tractor.

Before reaching the gap in the pasture fence, Anderson passed within a very short distance of the butane tank. At that time the tank looked normal to him and he saw nothing wrong. He was the farm mechanic, and in his opinion, the tractor and the tank were both in “good shape,” and there was “nothing wrong with either.” He didn’t see “any fog around it or anything like that, * * * or any gas coming out or anything of that kind.” He knew the odor of butane, and did not smell it “anywhere around.” It was his intention, after passing into the pasture, to stop and wait for Charles Ray.

Charles Ray saw Anderson go through the fence gap and into the pasture. He then veered toward the area of the butane tank for the purpose of parking the tractor. The tractor was facing East as Charles Ray traveled toward the tank, approaching the tank on its South side. He did not smell any butane as he moved toward the tank. He does not know what happened. He said: “I was going to stop it and back it up and park it. * * * I made an attempt to back up, but it just blew'up all at once. * * * It was so quick and so sudden to me, I don’t know what happened.” All he remembers is that there was an explosion. He does not know what it was that exploded, nor what caused the explosion. He was blown from the tractor by the explosion. The tractor had stopped at the time of the explosion, but the engine was still running. He was familar with the location of the tank, and with its use, and it was in plain view. He testified that no tractors would have been filled from it that day, being Sunday.

No person other than Charles Ray was present at or near the tank at the time of ignition, and there were no other witnesses. Charlie Anderson did not see it happen, though he “heard something” that stampeded the cattle. Johnny Blair, standing beside his automobile at his home a few hundred yards West of the tank, said, “Well, I heard some kind of a big rumbling and I happened to look up there and I seen all that blaze * *

Joe Reistino, Jr., supervisor of the farm and son of appellee, arrived at the scene of the fire within five minutes after the fire began. The tractor was “up against the tank on the South side,” facing West, parallel to the tank. The rim of the right rear wheel of the tractor was against the tank. A flame, “blowing like a blow torch,” was coming from the valve control area at the top and center of the tank. He reached for the cut-off valve, but it was gone. He testified that the pipe that came out of the tank was still there, but that “the pipe that came sideways * * * was broken and the rest of these valves and the hose were broken off.” He said that he saw a tire [710]*710mark on the South side of the tank — not on the top, hut “down on the side there. * * * I guess it went up two feet there * * * the same angle the tractor was running into.” The fire burned about 45 minutes. When the fire was over, he made an inspection of the tank and saw where the pipe and valves were broken off. On cross-examination, he stated that based upon his observation of the broken pipe, the tractor location, and the tire mark on the tank, it was his conclusion that “the tractor got upon the tank and broke off the pipe * * * and that caused the explosion.” He said that butane and butane equipment had been used on the farm since 1956, and this was the first fire.

Charlie Anderson testified that the “main line” of the tank ran to the side of the tank “off of the main valve,” and that “the valve that is up close to the butane tank * * * got a check valve in it * * * so that if gas comes out too fast it will shut off entirely.” He said that during the fire the tractor was headed West; that the motor of the tractor “was set up about center ways of the valves of the butane tank;” that fire was shooting from the tank to the South onto the tractor, and “splashed like water would splash” after striking the tractor; and that the butane tank was not burned “to speak of” during the fire.

Cooper Wiese owns the tank and services it with butane. He learned of the fire two days after it happened, and took the tank to his shop.

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Cite This Page — Counsel Stack

Bluebook (online)
448 S.W.2d 707, 1969 Tex. App. LEXIS 2308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erving-v-reistino-texapp-1969.