[Clipping: American Glycerin Company et al. v. Kenridge Oil Company et al., No. 301] Part: 3 of 6
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;r
Tex.) AMERICAN GLYCERIN C
(295 2
reetly presented the defense of unavoidable
accident ; and (3) that, if it was incorrect in
all of its particulars, it was sufficient to call
the attention of the trial court to such de-
fensive issue, and, since such issue was whol-
ly omitted from the court's charge, it was
the duty of the trial court correctly to frame
a question presenting the issue to the jury.
il] The questions must be determined in
the light of the decisions that, with regard
to the right of a defendant to have his defen-
sive matter presented to the jury by separate
charges, the same rules of law govern, wheth-
er the case is submitted upon general charge
or special issues. Fox v. Dallas Hotel Co.,
111 Tex. 461, 240 S. W. 517; Colorado &
Southern Ry. Co. v. Rowe (Tex. Com. App.)
238 S. W. 908.
The question of unavoidable accident was
clearly raised both by the pleadings and the
evidence in this case. The theory of appel-
lees upon which the judgment is based is
that, by lowering the shell containing the ni-
troglycerin at a high rate of speed through
a casing with only approximately a one-inch
difference between the diameter of the inside
of the casing and that of the shell, the fric-
tion of the shell coming in contact with the
casing on its descent generated sufficient heat
to cause the explosion. The expert placed
on the stand by them testified on cross-exam-
ination, in substance, that nitroglycerin is a
very unstable compound ; that any cause
which will bring about disintegration of the
compound will cause an explosion ; that it
might be caused by an electric shock, by strik-
ing it with a hard substance, shock, heat,
pressure, "hatching." He stated that fre-
quently it is very hard to determine what
brings about an explosion ; that they fre-
quently occur to which no one can assign an
immediate cause. Often it is due to not wash-
Lg it properly, by which is meant getting all
the acid out of it. He further testified
there are frequent explosions, the caus-
[ f which rest in pure conjecture. In ex-
nation of the word "hatching," this wit-
s testified that he had heard that, in the
itory in which this well was located, it
ietimes happens that shells filled with ni-
,lycerin, when placed in a well at a depth
in excess of 3,000 feet, where oil is standing
in the well, are allowed to remain there for
any length of time, will explode or hatch
without the application of any outside force.
Some character of chemical reaction takes
place in that particular territory when nitro-
glycerin is submerged in oil at a depth in
excess of 3,000 feet, which generates a heat
causing spontaneous combustion or hatching.
This does not occur in a dry hole.
[2, 3] No one knows what caused the ex-
plosion of the shell in this case. The idea is
not at all excluded that the shells which had
been placed in the bottom of the hole "hatch-I
II
0
O. v. KENRIDGE OIL CO. 635
s.w.)
ed," and that the disturbance caused thereby
exploded this shell by concussion. Other the-
ories of how it might have occurred are plau-
sible. Where the cause of an accident is un-
known and the evidence fairly raises the is-
sue that it happened without the fault of
any one, and from a cause different to thot
claimed by plaintiff, a question of unavoie-
ble accident arises. The essential meaning
conveyed by the term "unavoidable accident"
is that it happened unexpectedly and without
fault. The evidence shows that the explosion
might have happened from a cause entirely
different to that claimed by plaintiff, and
from a cause not brought about by the negli-
gence of the defendant. It was therefore er-
ror on the part of the trial court not to sub-
mit to the jury an issue on the question of
unavoidable accident. G., H. & S. A. Ry. Co.
v. Washington et al., 94 Tex. 510, 63 S. W.
534; Colorado & Southern Ry. Co. v. Rowe
(Tex. Com. App.) 238 S. W. 908.
Appellees rely upon the cases of Wichita
Falls Traction Co. v. Craig (Tex. Civ. App.)
250 S. W. 733, and Boyles v. McClure et al.
(Tex. Com. App.) 243 S. W. 1080, in support
of their contention that the question of un-
avoidable accident is covered by the charge
of the court, -and the determination by tie
jury that the proximate cause of the explo-
sion was the high rate of speed with which
appellants negligently lowered the shell. An
examination of these authorities discloses
that in each of them there was no question
as to how the accident occurred. In one, the
accident was caused by collision between a
street car and an automobile, and in the oth-
er it was caused by a truck backing into a
team of horses. The opinion in the former
case very clearly expresses the distinction
between these cases and the Washington and
Rowe Cases, supra ; one essential difference
between the cases being that the cause of the
accident was known in one and unknown in
the other. If we could know that in this case
friction caused the explosion, there would
arise no issue of unavoidable accident.
[4] Appellees insist that the special issue
requested was not a proper issue, because it
incorporated two separate and distinct ques-
tions which might have been answered dif-
ferently, and because it submitted to the jury
a mixed question of law and fact. We be-
lieve the charge is substantially correct.
There is no question but that the explosion
was the result of an accident. An accident,
as the term is used in this charge, means
merely that the happening was unexpected.
The issue submitted a question of whether
or not the explosion was the result of a cer-
tain kind of accident. However, we do not
feel called upon to determine whether or not
this requested issue was correctly worded.
The learned trial judge can correctly frame
a charge submitting appellant's defenses to
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Hickman, J. [Clipping: American Glycerin Company et al. v. Kenridge Oil Company et al., No. 301], clipping, 1927~; St. Paul, Minnesota. (https://texashistory.unt.edu/ark:/67531/metapth1156272/m1/3/: accessed June 11, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Hardin-Simmons University Library.