R. L. Harris v. The Atchison, Topeka and Santa Fe Railway Co., Phillips Petroleum Co.

538 F.2d 682, 1976 U.S. App. LEXIS 7158
Court of Appeals for the Fifth Circuit·Decided September 13, 1976·No. 75-1571·Published·Cited by 7 cases

Opinion

INGRAHAM, Circuit Judge.

This Texas tort law diversity of citizenship case arises from a railway tank car explosion in which several firemen suffered personal injuries. The firemen recovered damages from the railroad company (Santa Fe) and cargo owner (Phillips). Santa Fe was granted indemnity against Phillips. Phillips appeals contesting the district court’s finding on liability. 1 We affirm.

*685 FACTS

On December 15, 1973, four Santa Fe employees were switching railroad cars at the rail yards in Borger, Texas. During the switching operations, several cars were moved onto the scale track in order to prepare a train for an eastbound departure. 2 Other cars were on an adjacent track destined for a westbound departure.

Believing that the handbrake was set, the switching crew used an empty boxcar as a “bumping post” for other cars to be set on the scale track. After placing the boxcar on the track, the crew allowed a tank car containing 30,000 gallons of butadiene to roll freely and connect with the boxcar. Approximately seven other cars were bumped into the eastbound chain, but their handbrakes were not set. 3

Subsequently, the crew foreman noticed the boxcar and the loaded tank car to which it was coupled rolling north on the scale track downgrade. He notified the yardmaster by walkie-talkie, and the yardmaster was able to switch the runaway cars onto an empty track. A Santa Fe employee jumped aboard this “cut” of cars and brought it to a stop by using the handbrake on the tank car. The crew foreman had just finished notifying the yardmaster of the first cut of cars when he saw a second cut of four cars rolling down the same track. He was unable to contact the yardmaster, who saw the second cut of cars as it approached but was unable to board it. The second cut of cars rolled down the track until it collided with the first cut. The collision caused both cuts of runaway cars to be thrown several hundred feet north of the point of impact. The empty boxcar was derailed but remained upright; the tank car was also upright but was leaking butadiene vapor from a puncture the width of a pencil-.

The yardmaster, recognizing that the leaking butadiene created a dangerous situation, called the police and fire departments. The fire department attempted to secure the area by removing all potential ignition sources. The police set up barricades to keep unauthorized persons out of the area.

The yardmaster also called Phillips and requested help. Several Phillips employees arrived to assist in the safety efforts. All agreed that the butadiene should be transferred to another tank car. While Santa Fe employees moved an empty tank car next to the damaged tank car, Phillips employees prepared for transfer operations. Initially, the butadiene was transferred without pumps by venting the empty car and allowing the pressure differential to be the operative force. When the pressure all but ceased, Phillips, with the acquiescence of Santa Fe, elected to continue the transfer by using a pump with an internal combustion engine. The pump was placed between the two tank cars, and the hoses were connected to continue the transfer procedure.

After the pump had been in use for approximately two hours, Phillips decided to hasten the process in order to complete it before nightfall or a change of the then ideal wind direction. Phillips employees went atop the tank cars to open the valves. Another Phillips employee removed the pressure gauge from the discharge side of the pump. A small amount of butadiene leaked from the pump and a tiny flame appeared. While the Phillips employee was attempting to reconnect the pressure gauge, butadiene suddenly sprayed from under the connection above the discharge pipe. A fire then erupted between the two *686 tank cars and more fire equipment was called to the scene.

Firemen sprayed water on the two tank cars until the fire chief warned of the possibility of rupture and instructed them to abandon their efforts. When one of the tank cars eventually ruptured, the contents were ignited and a large ball of fire was hurled into the air causing numerous grass fires in the area. While firemen combated the grass fires, the other tank car ruptured, producing an even larger fireball which injured the plaintiffs.

Four firemen subsequently brought this action against Santa Fe and Phillips for personal injuries sustained from this explosion. Appellant presents numerous assignments of error attacking the findings of fact and conclusions of law of the district court.

NEGLIGENCE

At the outset we are confronted with Phillips’ argument that the “firemen’s rule” should preclude recovery. 4 Although many jurisdictions forbid recoveries by firemen for injuries suffered at the scene of negligently caused conflagrations, 5 Texas has no such rule. Its courts have sustained recoveries by firemen on at least three occasions. In Houston Belt & Terminal Ry. Co. v. O’Leary, 136 S.W. 601 (Tex.Civ.App.1911, writ ref’d), defendant railroad negligently allowed a boxcar containing fireworks to collide with other cars during switching operations. Plaintiff’s intestate, the chief engineer of the fire department, approached the boxcar to extinguish the fire. One of a recurring series of explosions fatally injured him. A jury verdict for plaintiff rejected defense assertions of volenti non fit injuria and contributory negligence. The court affirmed, concluding that each explosion constituted an independent negligent act. 136 S.W. at 605. Phillips refers in its brief at pages 19-20 to Suttie v. Sun Oil Co., 15 Pa.D. & C. 3 (1930) for a direct criticism of O’Leary:

“This reasoning seems to us to be straining for a theory upon which to support a liability . . . . [The case is against the trend of the decisions and advances a doctrine which ... is unsound and would tend to produce mischievous consequences.”

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R. L. Harris v. The Atchison, Topeka and Santa Fe Railway Co., Phillips Petroleum Co., 538 F.2d 682, 1976 U.S. App. LEXIS 7158 (5th Cir. 1976).

538 F.2d 682 (R. L. Harris v. The Atchison, Topeka and Santa Fe Railway Co., Phillips Petroleum Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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