HOUSTON BELT & TERMINAL RY. CO. v. JOHANSEN, 179 S.W. 853

PHILLIPS, C. J. The suit was by Jo-hansen, the defendant in error, on account of personal injuries suffered by him while in the discharge of his duty as a member of the fire department of the city of Houston by the explosion of combustible materials contained in a box car in the custody and charge of the plaintiff in error. The evidence warranted the conclusion that the explosion was caused by a sudden collision of the car with other cars, due to its being “kicked in” on the track where they were standing.

The original explosion was followed by recurrent explosions of the contents, causing a fire in the ear, as the result of which the contents were consumed, and the ear wrecked! The burning car threatened adjacent property, and, in response to an alarm, Johansen, with other members of the fire department, went to the scene for the purpose of extinguishing the fire. While engaged in that duty, and in proximity to the car, a further explosion of its contents occurred, of a violent character, causing his injury.

The jury resolved against the plaintiff in error the issue of whether the explosion was caused by its negligent handling of the car, returning a verdict in Jo-hansen’s favor in the sum' of $12,500; the verdict itemizing $2,500 of that amount as allowed for lost time, an issue of damages submitted in the charge. The honorable Court of Civil Appeals ordered a remittitur of $840 of the damages given for lost time, the judgment to be affirmed upon the remittitur being filed; and it was so filed.

The writ of error was allowed on the petition of the railway company, on the ground there urged, that the undisputed evidence showed that during the whole of the time for which damages were allowed on account of lost time, that is, from the date of the injury down to the time of the trial, Johansen had received the same, and during a part of the time a greater, salary than he was receiving at the time of the injury.

The charge of the court instructed the jury upon this feature of the damages that the plaintiff would only be allowed the reasonable value of time actually lost by him down to the time of the trial as the result of his injury, but that no deduction should be made of any amount paid him by the city as a mere matter of grace or gratuity.

If on account of his injury any time was actually lost by Johansen during this period, a finding favorable to him upon the other issues submitted in the charge would have entitled him to damages in the amount of its reasonable value; and if during such period he was paid by the city, as a gratuity or bounty, the same or a greater salary than he was receiving when injured, the railway company was not entitled to the benefit of such payment. Railway Company v. Jarrard, 65 Tex. 560.

There was a conflict in the evidence as to whether the amount paid by the eity in that interval was a gratuity; and there was evidence that he actually suffered the loss of such time. This fully warranted the submission of the issue of lost time as a part of the recoverable damages. The case is a companion one to that of Houston Belt & Terminal Railway Company v. O’Leary (Civ. App.) 136 S. W. 601, with substantially the same questions involved; O’Leary being the chief of the fire department, and having been injured by the same explosion, causing his death.

A judgment in favor of the wife and minor child of O’Leary was affirmed by the Court of Civil Appeals, and the petition of the railway company for writ of error denied by this court. In the present case the writ of error was allowed only because of the charge on the measure of damages. We do not find it necessary to discuss the other questions presented in the petition for writ- of error. The case of Denison Light & Power Company v. Patton, 105 Tex. 621, 154 S. W. 540, 45 L. R. A. (N.

S.) 303, urged by the learned counsel for the plaintiff in error 'as determining the question of its liability, has no controlling analogy. There Patton, without any right to do so, was making an unauthorized use of the light company’s property; and it was held that the latter was under no duty of anticipating its use by him, or, in particular, such as would create the situation which caused his injury. Johansen was at the scene of the fire in the performance of a duty. If it be admitted that he was a licensee, the railway company would be liable for any act of negligence on its

part causing him injury, since it was under the duty of refraining from such

an act. If, for illustration, before any explosion had occurred, he had been engaged in extinguishing the fire in this ear, and another ear had been negligently run into it by the company, causing the explosion, the issues of contributory negligence and assumed risk aside, there could be no question as to its liability.

While the act which caused the original explosion was committed before Johansen reached the premises, in the nature of the case the successive explosions, set in motion by the original act, made it one of a continuing nature; and if it was a negligent act, as it was within the province of the jury to determine, the fact that Johansen went upon the premises after its commission would not affect the question. His situation, as well as the duty of the railway company, was the same as if he had reached the premises before the first explosion occurred and it had caused his injury.

It therefore cannot be said that he went upon the premises dangerous at the time and took them as he found them. The judgment of the Court of Civil Appeals is affirmed. other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes