Uvalde Const. Co. v. Hill

• Citation: 175 S.W.2d 247
• Decision Date: 03 November 1943
• Docket Number: No. 8130.,8130.
• Parties: UVALDE CONST. CO. v. HILL.
• Court: Supreme Court of Texas

175 S.W.2d 247

UVALDE CONST. CO. v. HILL.

No. 8130.

Supreme Court of Texas.

November 3, 1943.

Rehearing Denied December 8, 1943.

Error from Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Carl Hill against Uvalde Construction Company for personal injuries sustained by plaintiff's wife. To review a judgment of the Court of Civil Appeals reversing a judgment dismissing the action, and remanding the case for trial on merits, the defendant brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

See, also, 151 S.W.2d 283.

M. J. Flahive, Earnest, Bondies & Flahive, and Strasburger, Price, Holland, Kelton & Miller, all of Dallas, for petitioner.

J. S. Grisham, of Dallas, Grisham & Grisham, of Eastland, for respondent.

CRITZ, Justice.

This suit was filed in a District Court in Dallas County, Texas, by Carl Hill, hereinafter designated plaintiff, against Uvalde Construction Company, a corporation, hereinafter designated defendant, to recover damages for personal injuries alleged to have been received by plaintiff's wife as the result of the negligence of the defendant. The trial court sustained certain special exceptions to the plaintiff's petition, urged by the defendant. This action of the court, in effect, adjudged that the petition on its face failed to allege a cause of action. Plaintiff refused to amend, and this cause was dismissed. On appeal by plaintiff, the El Paso Court of Civil Appeals, to which this case had been transferred, reversed the judgment of the district court and remanded this cause thereto for a trial on its merits.

Plaintiff's petition in the district court alleges, in substance: That on and before November 23, 1939, defendant was engaged in constructing a rural electrification system in a sparsely settled rural community in Eastland County, Texas; that in constructing such system the defendant dug holes in which to set poles; that in digging such holes defendant used dynamite to blast out rock and dirt; that about 7:30 o'clock on the morning of the date above mentioned defendant, in the prosecution of the above construction, set off a dynamite blast of such size and proportions that it caused a violent explosion and concussion, and earth tremors on plaintiff's premises some 2,296 feet (765-plus yards) from the place of the blast; that such explosion was attended by a shaking of the ground and buildings in plaintiff's barn lot; that such explosion caused a sudden and fearful noise on plaintiff's premises; that at the time of such explosion plaintiff's wife was engaged in milking a cow on plaintiff's barn lot; and that the blast and ensuing violent explosion, concussion, and earth tremors, attended by the shaking of plaintiff's ground and buildings and sudden and fearful noise, so frightened and terrified such cow that "she bounded against plaintiff's wife, knocking her to the ground, and turned and trampled upon her," thereby severely injuring her.

Plaintiff's petition further alleges: That the above events occurred in a rural community; that the inhabitants thereof usually milked their cows about 7:30 o'clock in the morning; and that this fact was known to the defendant.

Plaintiff's petition alleges that the defendant was guilty of negligence, which proximately caused Mrs. Hill's injuries, in the following particulars:

1. That defendant failed to warn plaintiff's wife of its intention to set off this blast of dynamite, as it was its duty to do.

2. That defendant used such a quantity of dynamite as to cause great and unusual...