Watson v. Kentucky & Indiana Bridge & R.R. Co., Ct. Of App. Of Ky.,

137 Ky. 619, 126 S.W. 146 (1910)

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Nature of the Case

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Facts

A tank car, owned by D and filled with gasoline was being transported through a populous section of the city of Louisville over the roadbed of the Bridge & Railroad Company, (D1). It was derailed and its valve broken causing all the gasoline to escape and flow in large quantities on the street and into the gutters. There was so much gas around that there were standing in pools in the street and gutters and great quantities of highly explosive and combustible gas made its way into the neighboring houses. Three hours after the derailment the gas exploded from a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in lighting a cigar. The explosion threw P from his bed and almost demolished his house. P was taken unconscious from the ruins of his house, bleeding, with a fractured jaw and one cheek nearly torn from his face. P sued Ds alleging a number of causes of negligence. Ds denied all the allegations. At trial, many issues were disputed but one thing was clear, those trying to fix the problems created from the gas were incompetent as incompetent gets. There was no contrariety of proof as to the fact that Charles Duerr lighted the match that caused the explosion. The issue developed over whether Duerr had accidentally struck the match or whether he did it maliciously. Ds were permitted to prove that Duerr, who had been a telegraph operator in the employ of the appellee Bridge & Railroad Company, was on the morning of the day of the explosion discharged from its service, and that 20 minutes before the explosion Duerr remarked to his companion, in the hearing of Giacometti and Darnall, 'Let us go and set the damn thing on fire.' A peremptory instruction was granted by the trial court upon the theory that though Ds may have been guilty of negligence in permitting the tank car to be derailed, such negligence was not the proximate cause of the P's injuries, but that the act of Duerr in lighting and throwing the match, which the court declared was done purposely and in a spirit of wantonness, malice, or mischief, was the proximate cause thereof. A directed verdict was entered for D. P appealed.