Kelly v. McKay
| Decision Date | 04 October 1950 |
| Docket Number | No. A-2698,A-2698 |
| Citation | 233 S.W.2d 121,149 Tex. 343 |
| Parties | KELLY v. McKAY et ux. |
| Court | Texas Supreme Court |
Carl Wright Johnson and Birkhead, Beckmann, Stanard, Vance & Wood, San Antonio, Scott, Wilson & Cureton, Waco, for petitioner.
Spann & Spann, San Antonio, for respondents.
The plaintiffs, Scott S. McKay and wife, sought in this suit to recover judgment for damages to improvements on their real property alleged to be caused by explosions in the caliche pit of the defendant, W. A. Kelly, and to enjoin the defendant from using explosives in such a way as to injure the plaintiffs' premises. The plaintiffs alleged generally that the defendant was negligent in causing explosions and blasts of such power and intensity as to produce violent shocks and tremors to the earth underlying the plaintiffs' premises and damage to the improvements thereon. Upon a trial, the district court granted a motion for an instructed verdict after the plaintiffs had introduced their evidence and had rested; and a judgment was rendered denying the plaintiffs all relief. The Court of Civil Appeals reversed this judgment and remanded the cause to the district court for a new trial, upon the ground that, when aided by the application of the rule of res ipsa loquitur, the evidence offered by the plaintiffs was sufficient to raise issues of fact which should have been submitted to the jury. 229 S.W.2d 117.
The principal contention of the petitioner in this Court, who was the defendant in the district court, is that the rule of res ipsa loquitur cannot properly be applied to this case, and this was the point on which the writ of error was granted. The authorities cited by the parties on this point have been carefully studied. However upon a full consideration of the record, we are of the opinion that it is unnecessary for us to decide this question, because there was some evidence offered by the plaintiffs which would reasonably sustain a judgment in their favor, without the aid of the rule of res ipsa loquitur; and therefore the trial court erred in instructing a verdict for the defendant at the conclusion of the plaintiffs' testimony. In so deciding we have followed the settled rule that we must view the evidence in the light most favorable to the party against whom the verdict was instructed. White v. White, 141 Tex. 328, 172 S.W.2d 295; Hoover v. General Crude Oil Co. 147 Tex. 89, 212 S.W.2d 140.
The plaintiffs testified that simultaneously with explosions in the defendant's caliche pit, which is between 700 and 1200 feet from the plaintiffs' premises, the 'whole premises' were shaken, cracks appeared in the walls, chimney and fireplace of their home, objects were shaken out of a cabinet to the floor, a wall 'buckled out,' 'large pieces of rocks' fell off of the rock walls of the home, a rock fell out of the wall of the garage almost striking Mr. McKay, and 'a fairly good size rock' fell from the fireplace. Following these explosions, doors stuck which had formerly opened and closed properly, part of a wooden door 'pulled apart', and floors sagged and were weakened so that furniture shakes as the plaintiffs walk across the living...
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Doddy v. Oxy USA, Inc., 95-21023
...is settled in this state that the question is one of negligence." Id. 96 S.W. at 1077 (citing Gulf, 58 S.W. 999). In Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121 (1950), the court applied negligence principles in the context of the use of explosives. Id. at 122. Lastly, in Elliff v. Texon D......
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Paxton v. City of Dall.
...v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953) ; Fitz–Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951) ; Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121, 122 (1950) ; White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943) ; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442......
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...v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121, 122 (1950); White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 44......
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Kushner v. Dravo Corp.
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