Southwestern Portland Cement Co. v. Bustillos

• Decision Date: 02 July 1914
• Docket Number: (No. 305.)
• Citation: 169 S.W. 638
• Parties: SOUTHWESTERN PORTLAND CEMENT CO. v. BUSTILLOS.
• Court: Texas Court of Appeals

169 S.W. 638

SOUTHWESTERN PORTLAND CEMENT CO. v. BUSTILLOS.

(No. 305.)

Court of Civil Appeals of Texas. El Paso.

July 2, 1914.

Rehearing Denied October 5, 1914.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Ynocenta Bustillos against the Southwestern Portland Cement Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Burges & Burges, of El Paso, for appellant. W. M. Peticolas and Stanton & Weeks, all of El Paso, for appellee.

McKENZIE, J.

Ynocenta Bustillos sued the Southwestern Portland Cement Company, Atchison, Topeka & Santa Fé Railway Company, and the Rio Grande & El Paso Railway Company for damages for the death of her son, Ferdinando Bustillos, aged 15 years. Before trial, plaintiff dismissed the two railway companies from the suit. A trial before a jury resulted in a verdict and judgment for plaintiff for $2,500. The trial petition does not clearly and logically set out the facts, and, besides, it contains useless repetition. We will endeavor, however, to state the substance of the allegations, as follows: Appellant was engaged in the manufacture of cement; that near its plant and southerly therefrom was a public road along the banks of the Rio Grande river; that between the public road and appellant's premises are railroad tracks belonging to the El Paso & Rio Grande Railway Company; that 20 feet northerly from said railway tracks is a dummy line used and operated by appellant; that upon appellant's premises, northerly of and near the dummy line, is an excavation, formed either by excavating the earth or by filling in and leaving a depression the unfilled part forming the excavation; that the excavation in question at the time of the accident was used by appellant to dump therein refuse, consisting of ashes, cinders, burning coals, fire, slag, etc., from the cement plant, which formed a burning mass of great heat; that such burning mass, when undisturbed, apparently was harmless, but when disturbed, would give forth great heat, and flames would emit therefrom, and that the fire and heat in the excavation was sufficient to seriously injure or to cause death to one coming in contact therewith; that along the public road and near appellant's premises many people resided; that persons passing from the public road to the appellant's plant were required to cross over the railway tracks and near to the excavation; that alongside of the excavation were private roadways and trails formed by constant use of the premises by persons and vehicles; that appellant's premises were not inclosed by any fence; that the excavation was not fenced or inclosed, or in any manner protected to avoid persons falling therein; that the people of the settlement, appellant's employés, and persons having business at the cement plant, constantly and habitually passed over said premises and near said excavation; that though appellant knew of the constant and habitual use of its premises by said persons, which had been constantly going on since the erection of its cement plant, and had never taken any steps to prevent said use, impliedly and tacitly consented and agreed that the premises might be so used; that the appellant had failed to erect or maintain any signboards, watchman, or to provide any warning to apprise persons passing the excavation of its danger, and had negligently failed to erect or maintain any guard rail, fence, or other barrier to prevent persons from falling therein.

"That on, to wit, the 2d day of June, 1911, Ferdinando Bustillos, the minor son of plaintiff, was passing along the said thoroughfare, that is to say, was passing along a footpath along the border of said tramway, which was then, and had been for a long time, used by pedestrians, and which immediately adjoined and was within about a distance of 2½ feet from said depression, for the purpose of performing an errand to one of the employés of the said cement company, to wit, one ____ Delfin, carrying his lunch to him at said cement plant, and at the time of so passing along and near to said depression, the said minor child was in the exercise of ordinary diligence; that the bank of said excavation and pit was soft and composed of loose dirt, waste, and ashes that had been thrown near and into said excavation and pit in the manner aforesaid; that the said minor child, while so passing between the said tramway...