Houston Transp. Co. v. Grimm

168 S.W.2d 892
CourtCourt of Appeals of Texas
DecidedJanuary 21, 1943
DocketNo. 11488
StatusPublished
Cited by6 cases

This text of 168 S.W.2d 892 (Houston Transp. Co. v. Grimm) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Houston Transp. Co. v. Grimm, 168 S.W.2d 892 (Tex. Ct. App. 1943).

Opinion

GRAVES, Justice.

This is a suit for damages for personal injuries sustained by the infant plaintiff, Bobby Jean Grimm, who sues by her father, A. G. Grimm, as next friend, and alleges that she suffered the loss of one of her eyes as the result of an explosion taking place in a heating-stove before which she was being held in the arms of her older sister. It is alleged that the injury was caused by the explosion of an electric blasting-cap, which had previously been negligently left on the premises in the vicinity of her home in the oil field near Gladewater, Texas, by the appellant, Houston Transportation Company, which had previously used the premises as a construction camp, and that the cap had been inadvertently placed in the stove with some trash and was caused to explode by the heat of the wood-fire therein, thus blowing some particle of material out of the stove into the eye of the appellee, causing the total loss thereof.

A trial by jury resulted in a verdict and judgment — entered upon the combined findings of both the court and the jury— against appellant for the sum of $15,000; from which this appeal is prosecuted.

On appeal, appellant’s first two points, which go to what its brief calls “the controlling questions of whether the thing that caused the explosion in the stove was an electric blasting cap; and if so, whether it was one left on the ■ premises by appellant”, were these:

(1) Its motion for an instructed verdict in its favor should have been given, because the evidence was insufficient to support a finding that appellee’s injuries were the proximate result of any act of negligence on its part;

(2) The jury’s verdict that appellee’s injuries were the direct and proximate result of appellant’s negligence was so against the great weight and preponderance of the evidence as to be manifestly wrong.

Neither of these contentions, it is determined, should be sustained. The first of them raises the point that there was no evidence of any probative force supporting the jury’s answers to the first four special issues submitted to it, to the effect, respectively, that the appellee had been injured about February 20 of 1937 by the explosion of a dynamite-cap, which had been negligently left by appellant’s agents upon its camp-site near Gladewater, and which dereliction had been a proximate cause of such injury.

The second one invokes the exclusive authority of this court to set aside the jury’s verdict, if in its opinion it was so against the overwhelming weight of the evidence as to be clearly wrong.

It seems clear, as indicated, that neither of such attacks upon the sufficiency of the evidence to support the jury’s stated findings can be upheld; on the contrary, in this court’s opinion, not only was there no such overwhelming preponderance against the verdict, but there was enough evidence to sufficiently support those findings, if not an actual preponderance that way.

Indeed, appellant itself thus greatly narrows its position on this phase of the controversy, by thus first admitting that there was evidence of negligence upon its part, and, in consequence, in then limiting its insistence to the claim that such negligence was not shown to have proximately caused the child’s injury:

“We do not contend that there was no evidence of negligence, because LeRoy swore there was; but we do insist that the causal connection between that negligence, if this Court feels constrained to accept LeRoy’s statement as true, and the explosion which caused the injury to ap-pellee, is not shown by the evidence.”

In that connection, it is plain that this court is in no position “to accept Le-Roy’s statement as true” or not true, since that witness’ testimony was not impeached before the jury, whose exclusive province it was to pass upon its credibility.

While it is not required of this court that it reiterate, or even undertake a comprehensive resume of the testimony which it holds to be sufficient as against both of appellant’s attacks thereon, this statement of its major features, which is not deemed to be overdrawn, is quoted with approval from the appellee’s brief:

[894]*894“From about June, 1931, to about August, 1935, a group of appellant’s employees occupied a camp-site about 2½ miles from Gladewater. During that time those employees used dynamite in their work, and 250 electric dynamite-caps came into their possession, of the ordinary type, with four-foot lead wires on them. * * * About February 20, 1937, A. G. Grimm and his family were living on the land formerly so occupied by appellant. During their occupancy of the camp-site, appellant’s employees did not keep a written record either of the amount of dynamite and number of caps that came into their possession, or that were used by them in their blasting operations.
“About February 20, 1937, Leslie Grimm, the 5 year-old brother of the appellee, found something out in the yard, with wires on it. He put it and some paper in an old straw hat of his, and put the hat under the bed in the house. A day or so later his mother, while cleaning the house, found the hat under the bed, and put it in the stove. There was an explosion almost immediately. Florence Grimm, 13 year-old sister of appellee, was sitting in front of the stove holding the appellee, then a baby girl about three months old, in her lap. The explosion caused the injuries, on which this suit is based. The explosion occurred about noon. Mr. Grimm, about five o’clock that afternoon, cleaned out the stove, and found a piece of wire three or four feet long, with copper sticking to it in the ashes. * * *
“Leslie Grimm (then 10 years old) testified that the electric-caps he found after the explosion looked like the' one he put in his hat. A. G. Grimm testified that the caps he found around the yard after the explosion had wires on them about the same length as the wire he took out of the stove, when he cleaned it after the explosion. * * *
“It was shown that Joe D. Hughes occupied the camp-site after appellant moved off, for about a year, and that one Barton moved on after Hughes left, and was still there at the time of the trial. Both Hughes and Barton were engaged in construction-work. There was no testimony that either Hughes or Barton ever had any dynamite or caps in their possession, or used any in their work. * * * Lyle Jeter testified that he was the bookkeeper at the store in Gladewater, from which appellant bought its electric-caps, that he knew of no other store in that vicinity who sold those caps, that his store sold no electric-caps to Hughes, or anyone else, other than appellant, up to the time of this injury.
“Leroy Ross, a negro, testified that he worked for appellant at its camp until the latter part of 1933, he then worked for the Humble Company at their warehouse near the camp-site; he then worked for Joe D.

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168 S.W.2d 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-transp-co-v-grimm-texapp-1943.