There was an explosion of gasoline in a tank car in the yards of the Gulf, Colorado & Santa PS Railroad Company in the town of Gainesville. W. J. Clement was seriously burned as a result of that explosion, and the railway company has prosecuted this appeal from a judgment rendered in his favor for damages for the injuries so sustained.
R. G. Porter was the defendant’s yardmaster at Gainesville, and, upon discovering that gas was spewing from the car, called upon W. J. dement to remedy that leaky condition. Clement was then working for the Producers’ Refinery Company in Gaines-ville, and frequently had been called upon by Porter to look after leaky oil cars coming into defendant’s yards inasmuch as he had the necessary tools and equipment for that work, with which he was familiar. Clement had formerly been employed by the railway company in its train service as a switchman and brakeman, but was not so engaged at the time of the accident. The railway company always paid him for his services in relieving the leaky condition of cars.
When Porter applied to dement to stop the leak in the car on the occasion of the accident, hq told Clement that the contents of the car was “unrefined naphtha,” and that was the designation of its contents in the waybill which came with the car and was the source of the information given by Porter to dement. The car contained casing head gasoline or casing head gasoline blend instead of unrefined naphtha, and was an interstate shipment originating in Drumright, Okl., and moving to Port Arthur, Tex. The place of the origin of the shipment was not on the defendant’s line, but upon the line of a connecting carrier; the waybill designating the contents of the car as unrefined naphtha being furnished to the defendant by the connecting carrier. In the top of the car there was a manhole which was closed by what is called a dome cap screwed into the opening of the hole. Near this dome cap there was also a three-quarter inch plug, and the leak mentioned was around this plug and the dome cap. Porter went with Clement to the car, and, after examining it and discovering the source of the leak, they took the plug out and replaced it with another. Gus Vineyard, one of Clement’s employes in his work for the Producers’ Refinery Company, went with him as an assistant to remedy the leaky condition of the car.
The gas pressure from within the ear was so strong that it seriously interfered with the work of replacing the old plug with the new. After the new plug was put in, and after plaintiff and Porter had loosened the dome cap, the dome cap was blown out by the gas pressure in the car, and the escaping gas and gasoline mixed therewith, which was thrown high in the air, caught fire, and before they, could escape Porter and Clement were both severely burned; the injuries to Porter proving fatal.
The trial was before a jury, whose verdict was upon special issues submitted by the court. Thirty-six questions were propounded to the jury, and we shall not undertake to set them out in full, but shall give the substance only of some of them and copy the remainder. Properly speaking, there were not 36 controlling issues in the case, and necessarily many of the questions submitted to the jury related to evidence bearing upon the issues and were not the issues themselves. The following are findings of the jury, stated in narrative form, in answer to some of the questions propounded to them:
The car contained casing head gasoline or a casing head gasoline blend, and Porter, the yardmaster, represented to* the plaintiff that it contained unrefined naphtha, and upon such representation plaintiff was induced to go and inspect the car.
R. G. Porter, the yardmaster, requested the plaintiff to inspect the car and to offer such suggestions as to what, if anything, should be done with it. The making of such request, under the conditions as they existed at the time, was negligence, which was one of the proximate causes of plaintiff’s injuries.
There was a placard upon the dome cap of the car containing a caution against the removal of the dome cap while there was gas pressure inside the car, and plaintiff saw the same, or by the exercise of ordinary care should have seen it.
Plaintiff, acting either by himself or in conjunction with another, loosened the dome cap, and such loosening of the dome cap caused the subsequent explosion. The explosion would not have occurred if the dome cap had not been loosened, and the loosening of the dome cap was the proximate or one of the proximate causes of plaintiff’s injury.
At the time Porter and dement went upon the tank car there was no liquid escaping around the dome cap or the safety valves, but gas and Vapor were escaping from the plug and dome cap. Before plaintiff went upon the tank car he had five or six years’ experience in handling the contents of .tank cars when such contents consisted of gasoline. There *409were switch lights burning in defendant’s yards day and night, and knowledge of that custom had already been acquired by the. plaintiff while he was previously in the service of defendant as a switchman or brakeman. After going upon said tank car and prior to the explosion, plaintiff, from his experience in handling gasoline, knew that the contents of the tank car was casing head gasoline.
The finding last referred to was in answer to question 29, and following are additional questions and answers:
“Question 30. If you answer issue No. 29 ‘Yes,’ then state whether or not said Clement remained upon said tank car after knowing or believing that its contents were easing head gasoline. Answer: Yes; just a short time they were making arrangements to get down when the explosion came.
“Question 31. "Would a reasonably prudent and careful man, in the exercise of ordinary care for his own safety, and possessing the knowledge and experience you may find plaintiff possessed at the time, have remained and worked on said car under the circumstances and conditions which you may find from the evidence existed at the time? Answer: No.
“Question 32. In requesting said Clement to come to said car, state whether B. G. Porter requested his presence as an expert in dealing with gasoline and other inflammable liquids. Answer: Yes.
“Question 33. At the time plaintiff went upon the ear was he in the employment of the defendant? Answer: Yes.
“Question 34. If your answer to question No. 33 is ‘No,’ you need not answer this question, but if your answer is ‘Yes,’ did the plaintiff have knowledge of the risks and danger incident to the employment in which he was at that time engaged? Answer: No; not at the time he went on the car.
“Question 35. Does the evidence in this case show that the plaintiff was guilty of contributory negligence which was the proximate cause or one of the proximate causes of such injuries as he sustained? Answer: Yes.”
In answer to question 9 the jury found that prior to the time the car exploded plaintiff learned that it contained casing head gasoline. The following were additional questions and answers: .
“Question 10. If your answer to question 9 'is ‘No,’ you need not answer this question, but if in the affirmative, then what did the plaintiff do next after learning its real contents? Answer: He finished putting in the plug and started making arrangements to get down.
“Question 11. Was the plaintiff guilty of negligence as that term is herein defined to you in doing what you have stated he did do after learning the contents of the car? Answer: No.
“Question 12. Did the defendant exercise ordinary care to see that the car was properly inspected and that necessary caution labels were in proper place, and that the condition and contents of the car were as stated on the way bill of lading received by it from its delivering carrier? Answer: No.
“Question 13. If your answer to question 12 is in the áfflrmative, you need not answer this question, but if your answer is ‘No,’ then was such a failure upon the part of the defendant the proximate cause, or one of the proximate causes, of the injuries sustained? Answer: Yes. * * *”
“Question 15. Was it negligence on the part of the defendant to permit the car to stand in the yard under the circumstances and in the condition it was in from the time it was placed in the yard to the time of the injury? Answer: Yes.
“Question 16. If your answer to question No. 15 is ‘No,’ you need not answer this question, but, if your answer is ‘Yes,’ then was such negligence, the proximate cause, or one of the proximate causes,, of the injury sustained by the plaintiff? Answer: Yes.”
In answer .to another question the jury assessed plaintiff’s damages for his injury in the sum of $10,000, but deducted therefrom 25 per cent, on account of his contributory negligence, and accordingly judgment was rendered in plaintiff’s favor for $7,500, thus giving defendant the benefit of its plea of contributory negligence on the part of the plaintiff.
If the relation between plaintiff and defendant was not that of master and servant, but was that of employer and independent contractors, as is insisted by appellant, then it is quite clear that the jury’s finding of contributory negligence on the part of plaintiff was of itself a complete bar to his right to recover. But we are of the opinion that the evidence was sufficient, prima facie at least, to sustain the finding of the existence of the relation of master and servant; and accordingly we shall adopt that finding as true. Plaintiff was employed for hire to do a particular work, and the fact that he was so employed by reason of his special skill, which was the only fact relied on to show that he was an independent contractor, would, not of itself make plaintiff an independent contractor, since all servants are supposed to be competent to perform the duties assigned to them, and are employed for that reason. In order to show that plaintiff was employed as an independent contractor, it was incumbent upon defendant to plead and prove some special facts which would negative the prima facie showing that he was employed as was any other employe,' such as a locomotive engineer, who is likewise employed because of his special skill in the operation of a locomotive. However, it is well settled that, even though the relation of master and servant was established, the defense of assumed risk was available to the defendant under the federal Employers’ Liability Act, which is applicable here, since at the time of his injury plaintiff was engaged in the business of handling interstate commerce. Pedersen v. D., L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 *410L. Ed. 1125, Ann. Cas. 19140, 153; 18 R. C. L. p. 830, and decisions there cited; Seaboard A. L. Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 19150, 1, Ann. Cas. 1915B, 475.
We entertain no doubt that the negligence of the defendant, if established, in exposing plaintiff to the danger of an explosion from casing head gasoline, without informing him of the danger, might properly be held to be a proximate cause of plaintiff’s injury, as was found by the jury.
The test as to whether or not an act or omission amounting to negligence is the proximate cause of an injury is whether or not the injury is the natui^l and probable consequence of such act or omission, and whether or not an injury of that character should reasonably have been foreseen as such a consequence in the light of the attending circumstances. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Neely v. Ft. Worth & R. G. Ry. Co., 96 Tex. 274, 72 S. W. 159; Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602. But we are of the opinion that, as a conclusion of law, the evidence was insufficient to support the jury’s finding that defendant, through its yardmaster, R. G. Porter, was guilty of negligence in inducing plaintiff to inspect the car which afterwards exploded, by representing to him that it contained unrefined naphtha instead of casing head gasoline, and thus leading him to expose himself to a danger which resulted in his injury.
The proof unquestionably established the following facts: The car was loaded by the Gypsy Oil Company, the shipper, at Drumright, Old.; the defendant had nothing whatever to do with the loading; the car was delivered to the defendant by a connecting carrier; the bill of lading which accompanied it was in proper form, with the proper certificate from the shipper and showed that it contained unrefined naphtha; and neither Porter nor any other employs of the defendant had any reason to suppose that such designation of the contents of the car was untrue, and that, in fact, the car contained casing head gasoline. It is a matter of common knowledge that substances such as naphtha, crude oil, and ordinary gasoline, which latter, according to the unchallenged finding of the jury, plaintiff was in the habit of handling, will emit gas; and the leakage of gas from the plug and the edges of the dome cap, which, according to the proof, is a matter of common occurrence, was not sufficient to put any of defendant’s employes on notice that the contents had been mislabeled in the bill of lading, and that the car in fact contained casing head gasoline. And this is especially.true in view of the finding by the jury, of which plaintiff does not complain, that the explosion would not have occurred if plaintiff had not loosened the dome cap; that finding being equivalent to a finding that the mere escape of gas and vapor from the car before the loosening of the dome cap was not dangerous. The bill of lading accompanying the car was introduced in evidence. It showed the contents of the car to be “unrefined naphtha,” following which was this, “Inflammable Placard and Dome Cover Caution Cards Applied.” It also contained the following certificate written thereon below what is copied above:
“This is to certify that the above articles are properly described by name and are packed and are marked and are in proper condition for transportation according to the regulations prescribed by the Interstate Commerce Commission. [Signed] Gypsy Oil Oo., Gasoline Department, Shippers, by W. B. Massey, Supt.”
R. H. Innes, who has been engaged in the service of the Bureau of Explosives since the year 1907, testified in the case, and no evidence was introduced contradicting the truth of the following testimony which he gave:
“It is my duty to notice the conduct of the business of oil companies, and I have done it for 11 years. * * * ”
And after examining the bill of lading he further testified as follows:
“This bill of lading for car 1355 G. R. O. X. and the certificate of the shipper which shows the placard. and certificate billed at Drum-right would lead me to conclude that his certificate tells the truth. The shipper loads these cars for delivery to the railroad company, and the shipper attaches the placards, and puts the dome cap on, and makes the certificate as to its condition. When these are done the railroad company has to receive the car and transmit it. * * * A loading rack is a track alongside the pipe a long pipe from which other pipes lead, that you can let down in a tank car, or in some cases it is a track where they hold ears when they load them through the bottom. These pipes that convey casing head gasoline or whatever they are loading extend to the car from the plant. The car is placed near the loading rack on a track and then the' oil company loads them. The owner of a car is required to test it and make the test on the car, the pressure test. The valves are supposed to be in good order. This man certifies it was in that condition when loaded. The interstate commerce conditions were complied with, and that necessitates that condition. The railroad company does not say what they put in the car, nor see it unless they happen to be there. They have no opportunity whatever except what is in the bill of lading and certificate for knowing what is in the car when it is announced ready for the initial railroad company.
* * * If I knew at Shawnee that vapor was coming out from around this car, the rules of the Interstate Commission, under those circumstances would be to accept the car and handle it. It would not kill people.”
If we are correct in our conclusion noted above that the evidence was insufficient *411to support a finding tliat defendant was negligent in failing to discover that the car contained casing head gasoline instead of unrefined naphtha, as alleged by plaintiff, then it would follow, of course, that it also failed to sustain the further findings of negligence in failing to previously inspect the contents of the car, which, by the way, was necessarily involved in the issue mentioned above, negligence in bringing the car into its yards in Gainesville and negligence in permitting it to remain there until plaintiff was called upon to inspect it. But, aside from that conclusion, it is clear that neither the negligence, if any, in failing to previously inspect the car, or in bringing the ear into the yards, or in permitting it to remain there, if considered separately and independently from the employment of plaintiff to go upon the car for the purpose of inspecting it, could be held to be the proximate cause of plaintiff’s injury, since there was no contention that he would have been injured if he had not been so employed. If he had remained where he was working at the time he was employed by the defendant, he would not have been injured at all. Furthermore, the act of bringing the car into the yards and the act of permitting it to remain there led up to the employment of plaintiff to inspect it, but the single issue of negligently inducing plaintiff to expose himself to the danger of the explosion, which was the gravamen of his compláint and the main issue, could not be so split as to make a separate issue of each condition and circumstance pertinent to the main issue, such as the failure to previously inspect the car, the act of bringing it into the yards, and the act of permitting it to remain there until plaintiff was called upon to remedy its leaky condition.
The notice which was upon the dome cap referred to in the findings of the jury was introduced in evidence and was as follows:
CAUTION
AVOID ACCIDENTS.
DO NOT REMOVE THE DOME COVER WHILE GAS PRESSURE EXISTS IN TANK.
KEEP LIGHTED LANTERNS AWAY.
The findings of the jury, considered in the light of the evidence, conclusively establishjes the defense of assumed risk pleaded by defendant, even though the several findings of negligence of the defendant should each be held to be an independent , issue and sufficient of itself to support a recovery. Snipes v. Bomar Cotton Oil Co., 106 Tex. 181, 161 S. W. 1; Bonnet v. G., H. & S. A. Ry. Co., 89 Tex. 72, 33 S. W. 334; St. L. S. W. Ry. Co. v. Hynson, 101 Tex. 543, 109 S. W. 929; 18 R. C. L. p. 830; Selboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915D, 475. Furthermore, that defense was conclusively established by plaintiff’s own testimony on the witness stand, independent of statements made by him to Mr. Greenwood, state fire marshal, as shown by the transcribed notes of a stenographer who took down his statements at the time they were made. That statement was in part as follows:
“Well, Mr. Porter phoned me he had a leaky car, and told me to come down and fix it. I went on down, and when I got there I saw we could not fix it, and I told him it was casing head gasoline and liable to blow up. He said it is billed out as unrefined naphtha. I told him there was no such stuff. We looked at the man-head and I showed him the precaution. I told him we never took no such precaution on our cars, and they were casing head gasoline.”
The following is a part of the testimony given by plaintiff-on the trial of the case:
“As to whether I testified when the state officials were up here examining into this fire and I testified before Mr. Greenwood, and Mrs. Simpson took down my testimony, will say some man and woman came over to my house and took a statement. I' do not know what it was. They did not swear me. The caution I had reference to in that testimony was with reference to those gaskets, and I never said anything about casing head gasoline. As to what I meant by telling Mr. Porter the company never did take any such precaution on our cars, will say it was after I had taken the little cap outside and I noticed that pressure. I did not tell him it- was casing head gasoline. I did not know it was, for I never saw any. It was something more dangerous than gasoline or unrefined naphtha. I thought that because of that gasket over there,-the washer where the dome cap was screwed down. I told him that I was of the opinion that by reason of that precaution being taken it was something more dangerous than' gasoline or unrefined naphtha. As to whether I went on and told him that we had some engines up in the yard and I told him he had better move away, that it might explode, will say I might have suggested that about a road engine. There was an engine at the roundhouse that I was telling Mr. Greenwood about. I told him there was one setting down at the south end of the yard. As to whether I told him to move that tank car away that I was working on, will say I do not know the words exactly. I told him the best thing he could do was to take this tank car away — to get it clear away. I told him to do that because I regarded it as dangerous and it might explode. I did regard it as dangerous and thought there was danger of its exploding. I have been telling you all the time that we moved -that plug and tried to put in a new one, and that we turned the dome cap about halfway, maybe not so far around, maybe a fourth. We took a 36-inch Stilson wrench to do it, both of us pulling on it. I answered that I do not think there was very much of an increase of vapor after we turned it.”
The gravamen of plaintiff’s case was that defendant negligently induced him to expose *412himself to the danger of an explosion; and, if he realized that danger and thereafter ■voluntarily exposed himself to it, it was immaterial that he did not then know that the car was loaded with casing head gasoline, rather than unrefined naphtha, if, in fact, he was then ignorant of the character of its contents; and the testimony of plaintiff himself referred to above would have warranted a peremptory instruction that he assumed the risk of his injury.
For the reasons indicated, the judgment of the trial court is reversed, and judgment is here rendered in favor of the appellant.