Universal Atlas Cement Co. v. Oswald

157 S.W.2d 636, 138 Tex. 159, 1941 Tex. LEXIS 373
CourtTexas Commission of Appeals
DecidedDecember 10, 1941
DocketNo. 2374—7715
StatusPublished
Cited by27 cases

This text of 157 S.W.2d 636 (Universal Atlas Cement Co. v. Oswald) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Universal Atlas Cement Co. v. Oswald, 157 S.W.2d 636, 138 Tex. 159, 1941 Tex. LEXIS 373 (Tex. Super. Ct. 1941).

Opinion

BREWSTER, Commissioner.

This is an action for damages brought by Joe Oswald and wife (defendants in error here) against Universal Atlas Cement Company (plaintiff in error here), in which the plaintiffs alleged that on land adjoining the farm of 138 acres on which they lived in McLennan County the defendant owned, operated and maintained a [638]*638cement manufacturing plant, as a part of which, it operated a quarry from which it blasted lime rock from a stratum of solid rock underlying both the farm of plaintiffs and the lands of defendant; that on plaintiffs’ farm were two wells dug into the aforesaid stratum of solid rock which for many years prior to July IS, 1935, had continuously furnished ample water for plaintiffs’ household use and for the livestock kept by them on the farm; that on or about July 15, 1935, the defendant in its quarrying operations caused “heavy, unusual and unreasonable and excessive and unnecessarily large quantities of dynamite” and other explosives to be exploded in its said quarry adjoining plaintiffs’ farm thereby “causing the structure of the earth in and under plaintiffs’ said farm to quake and vibrate in such manner as to break and damage the structure thereunder in such manner and to the extent as to release the water from plaintiffs’ said wells and the subterranean water and moisture therefrom and permanently destroyed said wells and reduced the value of said farm”; that such releasing of the subterranean moisture depleted the arable surfaces of the farm of the moisture necessary to the proper cultivation thereof and destroyed its fertility, its vegetation and crops as well as the grass which formerly grew in the pastures thereof to sustain plaintiffs’ livestock; that said negligent acts proximately caused plaintiffs’ damages, which were alleged to be $75 per acre, or a total of $10,350. Defendant’s answer (in so far as our discussion is concerned) was a general denial and a special allegation that “it is necessary to use an explosive for the purpose of breaking up the limestone so that it can be conveniently handled and transported from the quarry to its mill and that in the use of explosives in blasting the rock it exercises the highest degree of skill and care under the circumstances, and in accordance with the generally accepted practice followed by cement plants throughout Texas and the United States in the blasting of rock for the purpose of manufacturing it into cement,” and that, therefore, the plaintiffs’ damages were not due to its negligence.

With the issues thus joined the jury found (1) that on or about July 15, 1935, the defendant used an excessive quantity of dynamite in blasting its quarry; (2) that such use was negligence; (3) that the use of plaintiffs’ wells was destroyed on said date, (4) as a proximate result of defendant's negligence in using said excessive quantity of dynamite; (5) that the blasting on July 15, 1935, cracked the solid structure under plaintiffs’ farm, (6) rendering said farm less productive; (7) that said farm was so rendered less productive as a proximate result of defendant’s negligence in using an excessive quantity of dynamite; (8) that its reasonable market value was reduced as a proximate result of defendant’s said negligence; (9, 10 & 11) that said reduced value was $6,900; (12) that defendant did not adopt the usual and customary practice in its blasting operations at its quarry; and (13) did not exercise ordinary care in carrying on said blasting operations.

Upon these findings the trial court entered judgment for plaintiffs in the sum of $6,900. The defendant duly appealed to the Court of Civil Appeals, which in all things affirmed said judgment. See 135 S. W.2d 591.

As we analyze plaintiff in error’s assignments its principal complaints fall into two groups, namely (1) that the Court of Civil Appeals erroneously applied the doctrine of res ipsa loquitur; (2) that there was no evidence to show negligence on the part of defendant or that the same was a proximate cause of plaintiffs’ damages.

We do not believe that the doctrine of res ipsa loquitur is applicable to this case. That principle is invoked where mere proof that an accident occurs is sufficient to cast upon the alleged wrongdoer the burden to show that such accident was not due to any negligence of his; that is, the thing bringing about a given accident being under the management of defendant thereby placing him in a better position than was the injured party to foresee and avert the catastrophe, the accident is regarded as so unusual as that, in the very nature of things, it suggests negligence on the part of him who brings it about. See 30 Tex.Jur., § 131. Situations to which the doctrine has been applied as raising an inference of negligence where none was specially alleged or proved are: An automobile was so operated that it overtook and collided with a motorcycle on which the injured party was riding on the proper-side of the road at a reasonable and lawful rate of speed, Edwards v. Hawkins, Tex. Civ.App., 77 S.W.2d 1098; a long freight train went off the track at a curve thereby loosing quantities of oil and gasoline onto plaintiffs’ land sickening his cattle and [639]*639rendering his land unfit for grazing purposes, Gulf, C. & S. F. Ry. Co. v. Dunman et al., Tex.Com.App., 27 S.W.2d 116, 72 A. L.R. 90; plaster fell on the head of a customer in a store injuring him, Taylor v. Popular Dry Goods Co., Tex.Civ.App., 10 S.W.2d 191; a window screen fell into the street and struck a pedestrian, Southwestern Telegraph & Telephone Co, v. Sheppard, Tex.Civ.App., 189 S.W. 799, error refused. In this case if plaintiffs had alleged generally that the defendant set off the blast and that the claimed damages to them proximately resulted therefrom, leaving negligence to be inferred from the fact of such blast we would be confronted with res ipsa loquitur. But they are not content so to pitch their case. They follow up their charge that the defendant set off the blast with an allegation of the specific acts which they say made it an act of negligence. Hence res ipsa loquitur is not in the case.

In submitting an inquiry to the jury covering plaintiffs’ allegation that in setting the blast the defendant used heavy, unusual, unreasonable, excessive and unnecessarily large quantities of dynamite, the trial court properly chose and used the all-comprehensive word “excessive” after defining “excessive amount of dynamite” as being a quantity greater than was reasonably necessary in its blasting and greater than would be used by a person under the same or similar circumstances in the exercise of ordinary care in operating the quarry. Plaintiff in error asserts that there is no evidence to sustain the jury’s finding of an affirmative answer that an excessive amount of dynamite was used in response to the aforesaid inquiry, thus presenting the question which we must decide, namely, Is there any evidence that the quantity was excessive? We think so. Under the rulings of this Court, if it appears there is such evidence we have no alternative but to affirm the judgment, it being within the exclusive province of the Court of Civil Appeals to determine whether the trial court’s findings are contrary to the weight of the evidence. Texas Employers’ Ins. Ass’n v. Moreno, Tex.Com. App., 277 S.W. 84.

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Bluebook (online)
157 S.W.2d 636, 138 Tex. 159, 1941 Tex. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-atlas-cement-co-v-oswald-texcommnapp-1941.