Bustillos v. Southwestern Portland Cement Co.

• Decision Date: 28 May 1919
• Docket Number: (No. 54-2755.)
• Citation: 211 S.W. 929
• Parties: BUSTILLOS v. SOUTHWESTERN PORTLAND CEMENT CO.
• Court: Texas Supreme Court

211 S.W. 929

BUSTILLOS v. SOUTHWESTERN PORTLAND CEMENT CO.

(No. 54-2755.)

Commission of Appeals of Texas, Section A.

May 28, 1919.

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

Action by Ynocenta Bustillos against the Southwestern Portland Cement Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (169 S. W. 638), and plaintiff brings error. Reversed and remanded to Court of Civil Appeals.

W. M. Petticolas and Stanton & Weeks, all of El Paso, for appellant.

Burges & Burges, of El Paso, for appellee.

STRONG, J.

This suit was brought by Ynocenta Bustillos to recover damages for the death of her 15 year old son, Fernando Bustillos. Omitting the formal allegations, the petition alleges:

"That the Southwestern Portland Cement Company owned and operated a cement plant adjacent to and northerly of said line of railway just northwesterly of the smelter in the said county of El Paso and state of Texas, and which said cement plant was and is near the point where the said minor child received the injuries from which he died, as will hereinafter more fully appear. That the said cement company was and is now engaged in operating tramways, roads, and in excavating stone in connection with their business in the manufacture of Portland cement. And plaintiff avers that her said minor son, at the time of his death, was 15 years old, resided with her in the county of El Paso and state of Texas, and was her only means of support at and prior to the time of his death, and that said minor son received injuries on the second day of June, 1911, from which he died, as hereinafter set forth.

"Second. Plaintiff further avers: That upon the date aforesaid, and prior thereto, and since, there existed near the cement plant and southerly thereof a public thoroughfare along the bank of the Rio Grande river. That, near the said public thoroughfare and between the same and the said cement plant and works of said cement company, there existed the aforesaid railroad hereinabove described, owned by the Rio Grande & El Paso Railway Company, and operated by the Atchison, Topeka & Santa Fé Railway Company. That northerly of said railway company's tracks about 20 feet there existed a dummy line, or tramway, used and operated by the said Southwestern Portland Cement Company. That still northerly of said tramway is situated the buildings and cement plant owned and operated by the Southwestern Portland Cement Company. That in the immediate vicinity and not far away from said cement plant there is a hamlet, or settlement, where many people reside, and along said public thoroughfare and northerly of said tracks and in the vicinity of the plant of the Southwestern Portland Cement Company, are numerous residences and small houses occupied by divers persons who live in them. That of necessity any person passing from said public thoroughfare to said cement plant must cross over said railway tracks and near to and in the vicinity of the depression or pit hereinafter mentioned. That at or near said depression, or pit, are private roadways and trails which have been formed by the constant use of the premises immediately adjoining said pit, or depression, by persons and vehicles passing to and fro. That said depression or pit is near the plant of the Southwestern Portland Cement Company and the immediate vicinity is entirely open, in that it is not fenced or inclosed in any way, and that the people of said settlement, the employés at said cement plant, persons having business at said cement plant, and persons living along said public thoroughfare and in the vicinity of said cement plant and said depression, or pit, constantly and habitually pass over, across, and along said premises, and around, near, and in the immediate vicinity of said depression or pit, and the said defendant, the Southwestern Portland Cement Company, although said practice of so using its said premises and the vicinity of its said plant has been going on constantly and habitually since said cement plant was erected, has never taken any steps to prevent such use of said premises, but has impliedly and tacitly consented and agreed that said premises might be used by the general public and the employés of said cement plant and by persons having business at said plant. That the Southwestern Portland Cement Company for a long time has had notice and knowledge that its premises were so being used, not only by its employés, but by others of the general public, and that roadways, trails, and passageways have grown up and have been habitually and constantly used at and near said pit, or depression, hereinafter mentioned, by those residing in the vicinity and by the public in general. That not far from said cement plant and northerly of and very near to the dummy, or tramline, above described, and upon the premises of the Southwestern Portland Cement Company, and upon the right of way upon which said dummy or tramline is situated is an excavation or depression, in the earth, formed either by having been dug out or the adjacent ground having been built up around same, and which said excavation, or depression, was, as plaintiff alleges, formed and made by the defendant the Southwestern Portland Cement Company; and upon the date aforesaid and prior thereto, and since, the Southerwestern Portland Cement Company has used and is using said excavation, or depression, as a place in which to dump ashes, cinders, burning coals of fire, waste of different kinds, and the refuse in the nature of slag from its plant. That the aforesaid excavation ordinarily appears harmless, and there was nothing in or near the same to indicate heat or danger, or that there was fire in said trash, cinders, ashes, waste, or slag, and no warning of any sort at any time had been given by the Southwestern Portland Cement Company. That in truth and in fact the heat and fire in said depression was very great and sufficient to seriously injure any one coming in contact therewith and to cause death. That the nature of the substances so dumped by the Southwestern Portland Cement Company into said excavation was such that when quiescent it was apparently not dangerous, but that when stirred up by any hard or heavy substance being thrown into same a flame would immediately break out, and, in fact, the heat and fire therein was at...