Cage Bros. v. McCormick

• Decision Date: 23 February 1961
• Docket Number: No. 13726,13726
• Citation: 344 S.W.2d 203
• Parties: CAGE BROTHERS and Cecil Ruby Contracting Company, Appellants, v. Earl B. McCORMICK et al., Appellees.
• Court: Texas Court of Appeals

Page 203

344 S.W.2d 203

CAGE BROTHERS and Cecil Ruby Contracting Company Appellants, v. Earl B. McCORMICK et al., Appellees.

No. 13726.

Court of Civil Appeals of Texas, San Antonio.

Feb. 23, 1961.

Rehearing Denied March 22, 1961.

Groce & Hebdon, Richard Tinsman, San Antonio, for appellants.

Lieck & Lieck, San Antonio, Terry L. Jacks, San Marcos, for appellee.

MURRAY, Chief Justice.

Appellants' statement of the nature of the case is as follows:

'This is a case where four different plaintiffs alleged damages to their houses as a result of blasting operations conducted by defendants in a limestone quarry. The case was tried before a jury and upon the jury's findings a judgment was entered for the various plaintiffs. Defendants are here appealing from a denial of their motion for judgment non obstante veredicto solely on the ground that there was no evidence introduced which would support the jury finding that defendants were negligent.'

We cannot agree that appellants are appealing from a denial of their motion for judgment non obstante veredicto. They did not except to the order denying their motion for judgment non obstante veredicto, neither did they give notice of appeal from such order, because it is an interlocutory order from which no appeal is allowed by statute. Art. 5, Sec. 6, Texas Constitution, Vernon's Ann.St.; Arts. 1819, 1823, 1824, and Art. 2249, Vernon's Ann.Tex.Stats.; Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641; Mendoza v. Baker, Tex.Civ.App., 319 S.W.2d 147; Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173. Appellants did except to the judgment rendered on the verdict of the jury, and did give notice of appeal from that judgment.

In determining whether there is 'some evidence', as that term is understood, to support he jury's answers to the special issues, where they found that appellants in conducting their blasting operations were negligent in using an excessive amount of dynamite and in determining whether the giving of an instructed verdict or a judgment non obstante veredicto would be proper, all testimony must be considered in its most favorable light to the one against whom the instruction or the judgment non obstante veredicto is to be given, and conflicts are to be disregarded and every reasonable intendment deducible from the evidence indulged in his favor. Watt v. Texas State Board of Medical Examiners, Tex.Civ.App., 303 S.W.2d 884; Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190; Texas Employers Ins. Ass'n v. Smith, Tex.Civ.App., 235 S.W.2d 234; McElwee v. Mfrs. Cas. Ins. Co., Tex.Civ.App., 221 S.W.2d 381.

The evidence here shows that this was not an isolated case of blasting but daily blasting, over a period of about six months in a hard limestone quarry. That these daily blastings were tremendous explosions causing great tremors and shaking. That as a result of such blastings dishes would rattle in the cupboards, and tools would fall off the wall in workhouses. Rock would be hurled great distances. One rock weighing 85 pounds was found 730 feet from the nearest edge of the quarry, and it was still warm from the blasting. There were no cracks in appellees' houses before the blastings, but when the blasting started cracks began to appear in their walls. Appellees' houses were built on concrete foundations, were well constructed of rock, rock veneer or brick veneer. There were other houses of lumber construction in the vicinity which were not injured, but houses of lumber construction can stand more earth tremors than can houses constructed as appellees' were. One disinterested witness said that he was seated on a concrete porch at the home of one of appellees when a blast went off in the quarry, and it seemed to him that it bounced him one or two inches up off the concrete porch. Mrs. McCormick testified that she was on her back porch, of concrete construction, sweeping, when a blast went off in the quarry, and the porch cracked open almost before her eyes, and after each blast it got bigger. Appellees complained, directly and indirectly, to appellants just as soon as the blasting started. Appellee Herold Abel complained to Cecil Ruby, one of appellants, soon after the blasting began, and was told that he had a job to do and to let it go, and when they got through he (Ruby) would fix it up. Appellees' expert, Dr. Tonn, testified that by seismograph tests appellants could have determined whether they were creating too much tremor or concussion to appellees' houses, but they did not make such tests. In this way a safety standard could have been set up, but it was not. There were several disinterested witnesses who testified of the great concussions, shakings, quiverings and tremors every time a blast went off in the quarry.

Appellees' expert witness, Dr. William H. Tonn, Jr., testified that he is a consulting engineer; that he holds a Bachelor of Science Degree, Master of Science Degree, and a Doctor of Philosophy Degree in Engineering from the University of Texas; that he is a licensed engineer in the State of Texas and belongs to several national societies, namely, Sigma Zi, American Institute of Chemical Engineers and American Chemical Society; that he limits his work to a study of problems relating to fires, explosions and collisions; that he is familiar with dynamiting and operation of quarries.

Dr. Tonn related the procedures to start a quarry in virgin ground. He explained the seismograph machine which measures movement and displacement of earth. He further explained that the accelerograph machine measures acceleration or propagation of waves. He stated there are two things you are interested in in beginning a quarry operation, one is the location of the blasting and the proximity of buildings or anything else that might suffer from blasting. The proper procedure is to set up a seismograph and determine just what sort of waves and transmission you are going to get, and what part of displacement you are going to get in different locations from the blast area, because no two places are alike, and there are a lot of indeterminable variables, and the only way to determine is to measure by actual measurement. The seismograph and accelerograph instruments are the best for this work. They are placed where you want to run the test. The variable depend on the formation of the earth, rock, etc., on top and below the surface. He stated that if a house is located a given distance from the blast, the most accurate way to make sure that blast operations will or will not affect a house is to run a test in that area with the seismograph, and if you just go in and blast without a test, you are not sure of no damage. Blasting sets up wave vibrations in the ground which represent displacement, and they are what cause damage at various points from the blasting. They travel less distance in soft ground and further in rock or hard formations. He personally inspected the pit in question, which he said had a dense light brown limestone and a limestone material of bluish nature. The bluish materail is hard and fairly dense limestone and is pretty hard. It is located in the balcones fault. In blasting you try to break the material up so that it can go in a rock crusher.

He further testified that he examined the cracks in appellees' homes, and that they were caused from blasting; that he knows blasting damage when he sees it, and can recognize it from its characteristics. In explaining the damage to a house like Herold Abel's he said, 'if the stresses and strains are strong enough, they break it.' If it don't break, it is within the safe zone. If the blast was in safe limits, it would not break, but if it exceeds safe limits, you get breaks. He had considerable experience in determining setting cracks as opposed to explosions, and had checked some 800 houses tht had settled, within the last year, and stated that they are characteristically different....