
    GULF, C. & S. F. RY. CO. v. BENNETT et al.
    (No. 2609.)
    (Supreme Court of Texas.
    March 3, 1920.)
    1. Masteb and servant <&wkey;129(6) — Negligence causing EIRE NOT PROXIMATE CAUSE 03? INJURY TO SERVANT FIGHTING EIRE.
    Negligence of railroad employé in entering a tank car with a torch, causing an explosion and a fire, cannot be regarded as the proximate cause of the death of another servant who was injured and overheated while subsequently fighting the fire.
    2. Master and servant <&wkey;157 — Warning to crew FIGHTING FIRE SUFFICIENT.
    Telling a crew fighting a fire “not to get too hot, not to stay there if they got too tired, and if they got too hot or tired to get out and let others relieve them,” is a sufficient warning of the danger of becoming overheated.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Mrs. Lillie M. Bennett, adminis-tratrix, and others, against the Gulf, Colorado & Santa F'é Railway Company. From a judgment of the Court of Civil Appeals (159 S. W. 132) reversing a judgment in favor of defendant, the defendant brings error.
    Judgment of Court of Civil Appeals reversed, and that of district court affirmed.
    Terry, Cavin & Mills, of Galveston, Brown & Lockett, of Cleburne, and Lee & Lomax, of Ft. Worth, for plaintiff in error.
    Bryan, Stone & Wade, of Ft. Worth, and S. 0. Padelford, of Cleburne, for defendants in error.
   PHILLIPS, C. J.

H. C. Bennett, an em-ployé of the defendant railway company, while engaged with other employés in fighting a large fire in the yards of the company at Cleburne which threatened to destroy all the property in the yards and adjacent property as well, became overheated, with some parts of his body blistered or burned, causing his death. The .suit was one for damages on this account by his wife, as administratrix of his estate, and in her own right and for the use of their minor children.

The origin of the fire wds an explosion of the gas in an empty oil tank car, caused by an employé named Campbell going into the car for the purpose of repairing it, with a lighted torch. It spread quickly to near-by sheds, and elsewhere, burned fiercely, fanned by a strong wind, for several hours, producing a general conflagration, consuming a large amount of property within the thirty or forty acres comprising the yards of the company, and at certain stages imperilling all the property, shops, etc., in the yards. It produced, as pleaded by the plaintiffs, a condition of great excitement and emergency. The numerous employés of the company in and about the yards, including Bennett, joined generally in the effort to subdue it. A superintendent of one of the company’s departments about the shops or yards, named Dunlop, together with another official named Bird, were evidently attempting to in some measure direct the efforts of the men. The company had fire-plugs in the yards, and its own hose which the men were using. To lessen the effect of the heat upon those engaged in the immediate zones of the fire, water from the hose, was thrown upon them by others. Some was thrown upon Bennett and the men immediately with him while he was helping to subdue the fire.

At the direction or request of Dunlop and Bird, Bennett, with others went, at a certain stage of the fire, into the particular place where his injuries were received, a place where the fire was intense, to relieve other men — to prevent their becoming too hot. About the time of this direction and while Bennett had hold of the hose at this place, Dunlop, according to the undisputed testimony of one of the men with Bennett, a witness introduced by the plaintiffs, told Bennett and his companions “not to get too hot and not to stay in there if we got tired and that if we got too hot or tired to get out and let others relieve us.” “There were other men there at all times to relieve us,” stated this same witness.

It appears from the testimony that the water was thrown upon Bennett and the men with him, at their own request — to keep them cooled off while they were fighting the fire. The fire occurred in midsummer, and according to other testimony, undisputed, this was the proper thing to do.

Bennett was a strong man, in full physical vigor. It is urged that he was inexperienced in fighting fire, but there is no proof that Dunlop or Bird knew of his being any less experienced in that regard than the average man, or that it would be any more hazardous for him to attempt to subdue the fire in the manner stated than it would be for the average man.

The suit was rested upon three grounds of negligence:

1. The acts of the defendant and its employes in causing the explosion in the oil tank car, which started the fire.

2. Directing or commanding Bennett, an inexperienced man, to fight the fire under the existing conditions.

S. Throwing the water upon him while he was fighting the fire, which, it is charged, deceived him as to the extent of the heat to which he was subjected, causing him to remain too long where he was and become overheated.

In the trial court, a verdict was directed for the defendant.

In our opinion there was nothing to take the case to the jury, and the action of the trial court was accordingly proper.

Under the authority of Sealé v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602, and Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, the negligence of the defendant’s employés in the origin of the fire cannot be justly regarded as the proximate cause of the injury to Bennett. The test of this question is, ought the defendant and its agents to have reasonably foreseen that as the consequence of the negligence which caused the explosion in the tank car, the injury to Bennett, or like injury to some other employé in his situation, would probably result? In the language of Judge Gaines’ opinion in the Bigham Case, nothing short of prophetic ken could have anticipated the happening of the combination of events which resulted in Bennett’s becoming overheated. No one standing at the stage of the entire happening which had to do with the gas explosion in the tank car could have regarded it as other than a bare possibility, at best, that at a later period of a fire thus produced in an open enclosure, an employé of of the company, in attempting to extinguish it, would get so close to the fire or stay in such a situation so long as to be injured by the heat of the fire.

It was Bennett’s duty, as it was of every other employe about the premises, to assist in extinguishing the fire. Regardless of any duty, such would have been any man’s impulse. It was a large fire, a time of danger, of excitement, of sudden emergency, and threatened destruction of property other than that of the defendant. The ordinary actions of men in such situations furnish reliable standards of duty. It is ordinarily not such a time as admits of inquiry as to any man’s previous experience in fighting fire, or where such experience is taken into account in the individual’s desire and effort to help subdue the danger, or in a direction or request that he help at some particular place where the fire is the fiercest. Every one present, at such a fire as this one, is supposed to do his best, and generally does, without stopping for these things.

While Bennett, along with the other men present, was directed to help extinguish the fire, that would have been his duty, and no doubt his willing act, regardless of the direction or command. What duty owing him did the defendant breach or neglect? Let it be admitted that Dunlop or Bird should have warned him of the danger of becoming overheated. Dunlop did so, as effectually we think as any commensurate warning could have done. He told Bennett and the other men “not to get too hot, not to stay there if they got tired; and if they got too hot or tired, to get out and let others relieve them,” as others were there to do.

This, to our minds, showed concern and care for Bennett and the men engaged with him, a desire that they not endanger themselves in their effort. It likewise expressed a warning for them to be on the alert for the effect of the heat. If the fire was to be fought at all at that place, it seems to us that under the condition it fully answered any demand of a reasonable standard of duty and hence the demand of any reasonable rule of law. It warned and enjoined them —necessarily the best judges of the dangers of the situation — not to risk their own safety by staying too long in tbe beat, but to come out at will and let fresb men take tbeir places. Tbe negligence charged bere cannot be sustained by sucb a state of facts. Tbe issue is not made.

This is equally true, as to tbe throwing of tbe water on Bennett. According to tbe un-eontradicted proof, tbis was tbe proper thing to do ak a means of safeguarding him and the men with him; and it was done at tbeir express request.

Tbe judgment of tbe Court of Civil Appeals is reversed and that of the District Court is affirmed. 
      
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