Southwestern Portland Cement Co. v. Bustillos

• Decision Date: 06 November 1919
• Docket Number: (No. 305.)
• Citation: 216 S.W. 268
• Parties: SOUTHWESTERN PORTLAND CEMENT CO. v. BUSTILLOS.
• Court: Texas Court of Appeals

216 S.W. 268

SOUTHWESTERN PORTLAND CEMENT CO. v. BUSTILLOS.

(No. 305.)

Court of Civil Appeals of Texas. El Paso.

November 6, 1919.

Rehearing Denied November 28, 1919.

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

Action by Ynocenta Bustillos against the Southwestern Portland Cement Company. A judgment for plaintiff, reversed by this court (169 S. W. 638), was reversed by the Supreme Court (211 S. W. 929), and the cause remanded. Judgment of trial court affirmed.

Burges & Burges, of El Paso, for appellant.

W. M. Peticolas, M. W. Stanton, and Jno. F. Weeks, all of El Paso, for appellee.

HIGGINS, J.

This suit was brought by Ynocenta Bustillos to recover damages for the death of her son, Fernando Bustillos, aged 15 years, whose death it is alleged resulted from appellant's negligence. Verdict was returned and judgment rendered in appellee's favor for $2,500.

Upon appellant's premises there was a pit or depression in the ground into which it dumped hot ashes, burning coal, and slag. It was alleged that this pit was negligently maintained and unguarded, and on June 2, 1911, the deceased, while passing said pit upon a pathway about 2½ feet distant therefrom, slipped and fell into the same, receiving burns which caused his death; that in using the pathway deceased was performing an errand for one of the employés at defendant's plant, that is, carrying a lunch. The allegations are set out in full in an opinion of the Supreme Court in this case reported in 211 S. W. 929, to which we refer for a complete statement of the allegations of the petition.

The facts in this case, as disclosed by the evidence in so far as they are pertinent to the questions presented by this appeal, will be sufficiently indicated in the course of the opinion.

The first eight assignments complained of the action of the court in overruling general and special exceptions to the petition. The sufficiency of the petition as against general demurrer has been upheld by the Supreme Court in the opinion rendered as aforesaid.

In so far as the special exceptions are concerned, there is nothing in the transcript to show that the action of the court upon the same was ever invoked, and in this condition of the record they are presumed to have been waived. It is assigned as error that the court erred in admitting in evidence certain photographs of the pit and its immediate location. Mr. Weeks testified that the photographs were correct and reflected conditions as they existed before the camera. The objections urged relate to the probative force of the photographs, rather than to their admissibility, and they were properly admitted in evidence. During the progress of the trial and before submission to the jury, plaintiff filed a trial amendment. Error is assigned to the refusal of the court to strike it out; the proposition being advanced that the record fails to disclose any exception to the petition to have been sustained or that any evidence was excluded on account of insufficiency of the petition, and there was therefore no authority for the filing of the amendment. Appellant filed a number of special exceptions to the sufficiency of the petition, and, while it is true the record does not disclose any action by the court upon its exceptions, yet appellant in its brief asserts that they were overruled. The trial amendment contains allegations which would meet certain of the special exceptions. The language of rule 27 (142 S. W. xix) for the government of the district court regulating the filing of a trial amendment does not make the right to file the same dependent upon the contingency that exceptions to the original plea have been sustained. According to the appellant's own theory, the exceptions had been presented, decided, and overruled. It was within the discretion of the court to permit the filing of the trial amendment. Moore v. Moore, 73 Tex. 382, 11 S. W. 396; Railway Co. v. Huffman, 83 Tex. 286, 18 S. W. 741; Texas Co. v. Earles, 164 S. W. 28; American, etc. v. Ray, 150 S. W. 763. In any event, the filing of the same is not regarded as reversible error. Rule 62a (149 S. W. x).

Complaint is made of the action of the court in overruling defendant's motion for an instructed verdict in its favor for the reason that there was no evidence showing the defendant company to be such corporation as would be held liable in damages for the death of any person. The defendant was a private corporation engaged in the manufacture and sale of cement. The cases cited by appellant do not support the propositions which it advances. They simply hold that under the second subdivision of article 4694, Rev. Stat., such a corporation is not liable for the death of a person caused by negligence of its agents or employés. But "a private corporation is liable under the statute for injuries resulting in death from what may be deemed its own wrongful acts or omissions, as distinguished from the acts or omissions of its servants or agents." Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250; Lipscomb v. Ry. Co., 95 Tex. 5, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804.

In this connection various assignments question the sufficiency of the evidence. It is urged that the maintenance of the pit in its dangerous condition was not shown to have been due to the negligence of a vice principal of the company with authority to represent it in its corporate capacity; that O. J. Binford was the defendant's vice principal, he acting for it with respect thereto and the only representative of the company for whose negligence it could be held responsible; and that Binford was not connected with any negligent act.

Binford succeeded Gilbert as superintendent and vice principal of the company on May 20, 1911. The yard foreman, Duke, testified that the hole was being filled and refuse dumped therein under orders given by Gilbert during his incumbency. In the light of this evidence, there seems to be no basis for the contention that the dangerous agency is not shown to have been produced by the act of a vice principal. The fact that Binford did not reiterate the orders theretofore given does not affect the question. Besides, there is ample evidence of a circumstantial nature to show that the hole was being filled and maintained with the knowledge and approval of Binford. In fact, it would be difficult to escape such conclusion.

Furthermore, this pit filled with live coals and hot ashes was an intrinsically and affirmatively dangerous agency. As such it was the absolute and nondelegable duty of appellant in some appropriate way to protect and guard against its dangers those rightfully upon the company's premises while passing the same. A failure in this respect is the negligence of the company itself, and it cannot shift responsibility or escape liability therefor. Jacksonville, etc., v. Moses, 63 Tex. Civ. App. 496, 134 S. W. 379, 385; Temple, etc., v. Halliburton, 136 S. W. 585; Cameron, etc., v. Anderson, 98 Tex. 156, 81 S. W. 282, 1 L. R. A. (N. S.) 198; Cameron, etc., v. Anderson, 34 Tex. Civ. App. 105, 78 S. W. 8; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 495; Missouri, etc., v. Ballard, 53 Tex. Civ. App. 110, 116 S. W. 93; Kampmann v. Rothwell, 107 S. W. 120; Moore v. Kopplin, 135 S. W. 1033.

The sufficiency of the evidence is further questioned upon the ground that the pit complained of was on the private property of defendant, was remote from any public highway or from any private way through defendant's premises, and no duty devolved upon defendant to maintain its premises free from all dangers, and defendant was not guilty of negligence in using its premises as it did.

This may be disposed of by the observation that there is evidence in the record of employés and others rightfully upon the premises, habitually passing to and fro along and beside the dummy line, adjacent to the pit, using same as a pathway in going to and returning from the plant. It was defendant's duty to such persons to maintain its grounds in safe condition or properly guard and protect against dangerous places therein.

It is further questioned upon the ground that the deceased was a trespasser upon the private premises of defendant, and that it was under no obligation to maintain its grounds free from danger to trespassers, and deceased, being such, accepted the grounds as he found them. In this connection, appellant contends that the undisputed evidence shows deceased had taken a lunch to one Quirino Reyes and was returning; that Reyes upon that date was working at the reservoir 1½ miles beyond the plant and grounds where the pit was situate; that the county road was the direct route for the return of deceased from reservoir to his house, and he had no occasion whatever in so returning to enter upon the private premises of defendant at its main plant; furthermore, whether he had carried a lunch to the reservoir or the main plant, the accident is shown to have occurred between 4 and 5 o'clock in the afternoon, and under no possible...