Graves v. Union Oil Co.

CHIPMAN, P. J.

Plaintiffs bring the action as heirs at law of Warren Graves, deceased, who was burned to death .while employed by defendant and through the alleged negligence of defendant. The appeal is from the judgment on the verdict in favor of plaintiffs.

The cause of action is identical with the case of

Hallawell

v.

Union Oil Co.

(No. 1767), ante, p. 672, [173 Pac. 177]. Both Hallawell and Graves lost their lives at the same time and under identical circumstances. E'ach case was tried before a jury and in each plaintiffs had the verdict. The judgment in No. 1767 was affirmed. The facts and circumstances surrounding the accident causing Graves’ death are fully set forth in the opinion in cause No. 1767 and need not be here repeated. The testimony of witnesses in the present case is not, nor was it at all likely to have been, literally the same as when given by the same witnesses in the Hallawell case. But obviously, if the testimony was substantially the same in both cases and was deemed sufficient to support the verdict in favor of plaintiff in the Hallawell case, a like verdict in the present case must also be held to have support, and the judgment should be affirmed unless some error of law crept into the case at the trial of sufficient • gravity to require a reversal.

The contention of appellant here, as it was in the Hallawell case, is: 1. That there is no proof of negligence in connection with the asphalt-shed; 2. That there is no showing of causal connection between the fire in front of the stills and the fire at the asphalt-shed; 3. There is no showing of negligence upon the part of defendant in connection with the fire in front of the asphalt-stills. But one assignment of error is relied upon, namely, that the court erred in permitting answers to the hypothetical questions put to the witness Cooper.

The present case was tried some time after the trial in the Hallawell ease and was conducted without change of attorneys on either side. It is not likely that plaintiffs would fail

[768]

to make as strong a showing in. support of their contentions in the second trial as they did in the first. We think in some respects the showing is stronger. As to appellant’s first point, we thought the evidence in the Hallawell case, and we think the evidence in this case was sufficient to establish actionable negligence in discharging the liquid contents of the gas-seal on to the ground in a way to cause it to run along the ditch in front of the stills and over the ground around and near the trap, and so as to quickly take fire as it did from the furnaces under the stills. This was the initial act of defendant’s negligence which we held in the Hallawell case and which we think in the present case was shown to have caused the fire at the asphalt-shed. There was evidence in the present case that the inflammable oil in this fluid was seen burning within two or three feet of the trap, a foot nearer than appeared in the Hallawell case. It was shown, too, that the temperature of this fluid was raised after it left the gas-seal as was also the water flowing in the ditch which came from the condensers, by the heat from the furnaces and by the burning oil on the surface of the fluid which came from the gas-seal; and that this increased temperature would cause inflammable vapor to rise from the trap, become ignited by the flame near the trap, and thus ignite the oil in the trap on its way down to the asphalt kettles through the eight-inch pipe. We do not think it necessary to recite the evidence. In our opinion it strengthened rather than weakened the showing in the Hallawell case. We think, too, that the evidence tending to show a causal connection between the fire at the asphalt-shed and the fire in front of the stills was equally satisfactory, if not more convincing, than at the first trial. There was no evidence upon which any rational theory could be predicated that the fire started at the asphalt-shed otherwise than by the burning oil carried through the -eight-inch pipe. That there was negligence on the part of defendant shown in connection with the fire at the asphalt-shed appeared even more strongly than at the Hallawell trial. It will be recalled that this shed was an open wooden building of size 130x150 feet, with a wooden floor, and that the asphalt kettles were at the side of the part of the building called a “lean-to”; the asphalt was drawn from the kettles through long metal nozzles into barrels; to facilitate the drawing off of the asphalt which