Texas Company v. Pecora

Kintner, J., by special assignment, delivered the opinion of the Court. On March 17, 1950, Gary Grace and Curtis Brown, boys about seven years old, were badly burned by the explosion of a gasoline tank on a vacant lot in the Dundalk area of Baltimore County. The tank was the property of the Texas Company and had been placed on the lot by Joseph Wielgosz, a builder, who had removed it from a near-by lot owned by Forteno N. Pécora, Pauline Pécora and Pitt Pécora. Actions were filed in the Circuit Court for Baltimore County against the Texas Company, Wielgosz and the Pécoras on behalf of each boy for personal injuries and a parent of each for expenses and loss of services.

The cases were consolidated and after a jury trial lasting eight days resulted in verdicts for ²⁸⁷ each boy and each parent against the Texas Company and in favor of the other defendants. There are eight appeals from judgments entered on the verdicts. The Texas Company appealed from the judgments in favor of the Pécoras, the judgments in favor of Wielgosz in each case and the judgments against it of Gary Grace and his father and Curtis Brown and his mother. Gary Grace and his father appealed from the judgments in favor of Wielgosz and the Pécoras.

Curtis Brown and his mother appealed from the judgments in favor of the same defendants. The latter two appeals have not been argued and need not be considered. The questions in the case are (1) whether there was sufficient evidence for the jury to find negligence on the part of the Texas Company contributing to the injuries; (2) whether the jury could find a verdict against the Texas Company and exonerate Wielgosz and the Pécoras; and (8) whether the charge of the trial judge fairly and correctly presented the case to the jury. The Pécoras owned two lots of land in Inverness, Baltimore County, located respectively on the southeast and the southwest corners of the intersection of New Deal Place and Midway.

The latter lot was vacant. On the former lot was located a grocery store operated by them. To the east of the store on the same lot was a filling station operated by them. The equipment of this station consisting of two pumps and three 550 gallon under-ground tanks was leased to F. N. Pécora by the Texas Company on April 2, 1941, for use in the sale of its products.

The lease was subject to cancellation upon a thirty day notice by either party and provided that upon cancellation the lessee should return the equipment in good condition. It was on a printed form intended to cover cases where the lessee was not the owner of the land, whereby the land owner assented to the installation and agreed that the Company could remove the equipment without legal proceedings. On February 19, 1948, F. N. Pécora executed a purchase agreement, ²⁸⁸ being a renewal of a former agreement, whereby he agreed to buy gasoline from the Texas Company. The gasoline business was doing poorly in 1949 and early in 1950 the Pécoras decided to enlarge the store by erecting a 25 by 38 foot addition to be located partly on ground occupied by the filling station pumps and tanks.

An application was made on January 20, 1950, for a building permit, which was issued on February 20, 1950. This matter had been talked over by Pécoras with the Texas Company and as a result the latter gave notice on January 26, 1950, to terminate the sales agreement on February 28, 1950. On February 28, 1950, the Pécoras executed a contract with Wielgosz to construct the building at a cost of $12,300.00. The builder agreed to remove all waste material and debris from the lot during course of construction.

No basement was included. Excavation for the foundation was to be deep enough to support a two story brick building, with a footing two feet wide, eight inches thick and foundation wall one foot thick. Work was to commence as soon as possible. On February 23, 1950, the Texas Company issued an order to R. C. Martin, a contractor employed by it, to remove all equipment of the company from the Pécora lot.

On February 28, 1950, John Morgan, maintenance man for the Texas Company, went to the Pécora property to supervise the removal. Morgan says he had a conversation with one of the Pécoras and was requested not to remove the tanks from the ground. This is denied by Pécoras. Martin then was directed by Morgan to remove the pumps and leave the tanks.

These two witnesses testified that they removed all gasoline from the tanks that could be taken out by pumps. Some residue however remained. These men then proceeded to cap the fill pipes and suction pipes at the top of the ground, but left the vent pipes in place. It appears from testimony of Morgan and Martin that there are three ways in which such tanks are dealt with. ²⁸⁹ If they are to be abandoned in the ground, they are filled with sand and water and all pipes capped near the top of the ground.

If they are to be left in the ground for future use, they are capped as described by Morgan during temporary non-use. If they are to be removed from the ground, all pipes are removed from the tanks and plugs inserted in the holes from which the pipes were taken. It is clear the Texas Company intended only to make these tanks secure during temporary non-use. It knew of the building plans and that the tanks would have to be moved.

Whether it intended later to return and move them is not clear. If it intended to abandon them as old and worthless, then it did not follow the approved method. Wielgosz coming upon the premises about March 4, 1950, to start the building found the tanks in the ground. He testified he knew nothing of the dangerous character of such tanks.

It was not a part of his contract to remove them; he was told by Pécora to take them out. Pécora says he told Mr. Strippy of the Texas Company of his intention to erect the building and Strippy replied: “All right, we are going to remove the pumps and the big sign but we won’t remove the tanks. * * * The tanks are old and they are of no value to us. It will cost us more to take them out than what they are worth, and we can get all the new tanks we want, and we will not use these old tanks.” Wielgosz dug up the three tanks, put chains around them and dragged them across the street to the vacant lot of the Pécoras. He was directed to do so by Pécora.

Both Wielgosz and Pécora thought the tanks were empty. Neither knew they were dangerous. Later Wielgosz with Pecora’s permission hauled one of them away to a farm of a relative. Neither seems to know whether the pipes on the tanks were capped after removal.

The vacant lot of Pécoras on which the two tanks were left was known by Pécora to be a place where children frequently played. His own children played there. ²⁹⁰ He warned some children to stay off the tanks. He feared they might be rolled over and injure a child. On this same lot, about twenty feet from the tanks, was a trash can in which Pecora’s clerks were accustomed to burn rubbish.

Twenty-three feet from the tank involved here, and about the same distance from the trash can, was a tree. The tree stood slightly outside the lot line and upon the public highway. About four o’clock on the afternoon of March 17, 1950, four boys, Grace, Brown, Norton and McGee were playing on the lot rocking the tanks back and forth. It is not clear whether a fire left by Pecora’s clerk was smouldering in the trash can or whether a fifth boy had lighted it and left.

Norton, aged thirteen, says he saw gasoline run out of a tank when they rolled it over and some of it was on the ground. He took a lighted stick from the trash can, went over to the puddle of gasoline and held the burning stick toward it. At that time Grace and Brown were standing at the tree. McGee was running away.

There was a terrific explosion. Both ends of the tank were blown out. Miraculously Norton was only slightly burned. Grace and Brown were burned, the former severely.

There was sufficient evidence from which the jury could have found certain facts important in the decision of this case. Some of them are not disputed. It is not disputed that the tank was from beginning to end the property of the Texas Company. It was conceded at the argument that Morgan understood that the tanks were not to be left permanently in the ground.

It is clear from the testimony of Morgan and Martin that the safe procedure in removing a tank from the ground is to disconnect all pipes and securely plug and seal all openings at the tank. It is clear from their testimony that an old tank cannot be completely freed of gasoline, sluge and vapors except by the use of steam or chemicals. The vapors linger in scales of rust and even in the pores of the steel. From long experience and technical knowledge the em ²⁹¹ ployees of the Texas Company knew the dangerous nature of tanks.

All this is practically conceded. Nor is there any evidence that the Texas Company gave warning to anyone. The jury could have found from the evidence that Pécora, Wielgosz and the infant plaintiffs had no special knowledge of the lingering characteristics of gasoline or of the highly dangerous nature of an apparently empty tank. Under similar circumstances it was held in American Oil Co. v. Wells, 164 Md. 422 , 165 A. 298 , that a person with no special knowledge or prior warning was not guilty of contributory negligence as a matter of law when he used burning paper to thaw a water pipe near the open suction pipe of an underground tank.

The negligence of the Texas Company in the first instance is its leaving the tanks in the ground unfilled with sand and water, if it intended to abandon them; or failing to cap them at the tank if it knew, as is conceded, that they would have to be moved. Further, with a knowledge that someone might move them, with a knowledge that some disposition would have to be made of them, once they were out of the ground, and with a special knowledge of their dangerous character, it failed to warn anyone of the risks involved. The next question is whether this original negligence makes the Texas Company liable for the event which followed. It appears that the Company had no knowledge that the tanks had been removed or where, or knew anything of the matter until an account of the explosion appeared in the newspapers.

The appellant in its brief fails to take into account the element of hidden danger. Therefore such cases as State v. Hecht Co., 165 Md. 415 , 169 A. 311 , (elevator shaft); Birckhead v. Baltimore, 174 Md. 32 , 197 A. 615 , (stones near highway); Bloom v. Good Humor Ice Cream Co., 179 Md. 384 , 18 A. 2d 592 , (automobile); Otis Ele vator Co. v. Embert, 198 Md. 585 , 84 A. 2d 876 , (elevator); Wash. Sub. San.

Comm. v. Musgrove, 203 Md. ²⁹² 231, 100 A. 2d 27 , (water meter cover); Walker v. Vail, 203 Md. 321 , 101 A. 2d 201 , (garage door); and similar cases, do not apply. The jury could have found from the evidence that these tanks were known to the Texas Company to be highly dangerous if brought in contact with sparks or fire. It could have found that there were safety measures well known to the Texas Company whereby the tanks could be rendered harmless. It could have found that the Texas Company knew that the tanks must be moved and that it took no action to render them safe for removal.

The jury could have found that the Texas Company should have foreseen that others ignorant of the danger might remove them and leave them in an unsafe condition. The jury could have found from the evidence that the Texas Company should have foreseen that these tanks thus exposed and dangerous would constitute a hazard to others and that the explosion which occurred in this case was a reasonably foreseeable result. Such finding by the jury would establish the negligence of the Texas Company. The next inquiry is whether any acts of Pécoras, Wielgosz, Norton or the plaintiffs constituted an intervening cause so as to break the