Stafford v. Thornton

• Citation: 420 S.W.2d 153
• Decision Date: 19 June 1967
• Docket Number: No. 7721,7721
• Parties: Henry L. STAFFORD and Dynadrill, Inc., Appellants, v. Mrs. S. A. THORNTON, Appellee. . Amarillo
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 153

420 S.W.2d 153

Henry L. STAFFORD and Dynadrill, Inc., Appellants, v. Mrs. S. A. THORNTON, Appellee.

No. 7721.

Court of Civil Appeals of Texas Amarillo.

June 19, 1967.

Rehearing Denied Sept. 5, 1967.

Cayton & Gresham, Karl Cayton, Lamesa, Morehead, Sharp, Boyd & Tisdel, Roger C. Henderson, Plainview, for appellants.

Stovall & Stovall, Frank Stovall, Plainview, for appellee.

DENTON, Chief Justice.

Mrs. S. A. Thornton, a widow, brought suit against Henry L. Stafford to recover for damages for land and improvements thereon alleged to have been caused by blasting operations in a nearby caliche pit. Stafford impleaded Dynadrill, Inc., as a third party defendant. The trial court's judgment, based on a jury verdict, was rendered for the plaintiff against Stafford for $40,000.00 plus interest, and judgment was rendered for Stafford over against Dynadrill for the same amount. Both defendants have appealed.

Appellee was the owner of a 320-acre farm in Floyd County. Stafford entered into a contract with the State Highway Department to construct a road in the area and employed Dynadrill to conduct blasting operations in a caliche pit approximately 1/2 mile west of the property. These blasting operations were conducted at intervals from June 4 to July 20, 1965.

Appellees alleged a cause of action for damages to a brick residence, a frame residence, a barn, one domestic water well, three irrigation wells, and an underground concrete pipe irrigation system connecting the three irrigation wells, was based on the premise appellee is a third party beneficiary under a written contract Stafford held with the State Highway Department; and an alternative ground that the defendants were negligent in causing explosions of such power and intensity as to produce violent shocks to the earth and damage appellee's land and improvements. In response to special issues, the jury found: (1) that appellee's property was damaged as a result of the blasting operations; (2A) that the defendant used more excessive charges of explosives than a person of ordinary prudence would have used under the same or similar circumstances; (2B) that the use of excessive charges of explosives was a proximate cause of the damages; (3A) that the defendant failed to use utmost care not to endanger the property of appellee; (3B) that such failure resulted in the damage to appellee's property. 'Utmost care' was defined as 'that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances'. The jury further found the damages to the Thornton property were permanent; and found the difference between the cash market value of appellee's property immediately before and after the blasting operations was $40,000.00. It was also found the damage was not caused solely by blasting by other contractors not a party to this suit.

Appellants' first group of points of error contend there is no evidence and alternatively, insufficient evidence to support the jury finding excessive charges of explosives were used; and that appellants failed to use utmost care not to endanger appellee's property. In considering the 'no evidence' issue, the evidence must be viewed in the light most favorable to the verdict and disregard that which is opposed or contrary to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938.

As stated, appellee's 320-acre farm was located east of the caliche pit in question. Testimony relative to the exact distances from the pit to the various improvements on appellee's land was indefinite. There was testimony the 'improvements' were approximately 2000 feet from the pit. The two residences were located on the west side of the farm and it appears they were approximately 1/2 mile east of the pit. The three irrigation wells were in the approximate center of the 1/2 section and were further to the east of the two residences, and were several hundred feet farther from the caliche pit. The blasting operations were performed two or three times a week during the interval from June 4 to July 20, 1965. A new brick home was moved onto appellee's premises prior to the blasting and was occupied by her son and family on June 7, three days after the blasting began. Mrs. Thornton occupied a frame house nearby. Members of appellee's family, a former tenant, and neighbors testified to experiencing the blasts. One testified 'it would shake the house'; 'You feel the ripple before you hear the blast. Then it seems that the walls of the house would expand and then come together again'. Dishes would be rattled and several saw rocks and debris in the air following the blast. Damage to both residences were described after the blasting by several witnesses. These included a cracked foundation, cabinets on walls loosened, cracked bathroom tile, some outside bricks broken, plaster cracked, roof on the brick house sagged in the middle, and cracked concrete flooring in the barn and garage attached to the frame house. The irrigation wells produced approximately 1/2 the water produced prior to the blasting. Appellee's expert witness, a graduate geologist, examined the property and studied maps of the water levels of the surrounding area and measured the water level of appellee's irrigation wells. He testified that the damage to the wells was caused by the blasting .

The blasting operations were described in detail by the sales representative of the supplier of the explosives, and a Dynadrill employee who was the 'shooter' on the job. They described the spacing, depth and diameter of the holes, the amount of the explosives used together with the firing delay pattern used during the operation. Some 30--35 holes were used for each 'shot' and 3 3/4 inch diameter holes were spaced in rows nine feet apart with 12 foot spacing between holes. The amount of ammonianitrate, dynamite and other materials varied from 824 lbs. per shot to approximately 252 lbs.

It is well settled that liability for damages caused by the use of explosives is dependent upon the existence of negligence in the manner of setting up the explosives. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. Crain v. West Texas Utilities Co. (Tex.Civ.App.) 218 S.W.2d 512 (Ref.N.R.E.). Standard Paving Co. v. McClinton (Tex.Civ.App.) 146 S.W.2d 466. One test of negligence in a case involving explosives is whether an excessive amount of explosives is used. Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636. Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121. This issue was submitted to the jury. The issue included a definition of 'excessive' as being the use of a quantity greater 'than a person of ordinary prudence in the exercise of ordinary care would have used under the same or similar circumstances'. This definition was approved in the Oswald and Kelly cases.

It is appellants' contention the burden is upon the plaintiff to show a standard of care to be exercised by one engaged in the use of explosives and a departure from that standard. Appellants insist there is a total absence of evidence to sustain this burden. In support of its position, appellants rely principally upon Dellinger v. Skelly Oil Co. (Tex.Civ.App.) 236 S.W.2d 675 (Ref.N.R.E.). Indian Territory Illuminating Oil Co. v. Rainwater (Tex.Civ.App.) 140 S.W.2d 491 (Error Dis.). Stanolind Oil & Gas Co. v. Lambert (Tex.Civ.App.) 222 S.W.2d 125. Sinclair Oil & Gas Co. v. Gordon (Tex.Civ.App.) 319 S.W.2d 170. These cases were seismograph explosion cases and present different facts from the case at bar. The Lambert case held the doctrine of Res ipsa loquitur was not applicable under the facts and circumstances of that case. In the Gordon case the question was whether the plaintiff had sustained its burden to show the defendant was negligent in exploding charges 'too close' to plaintiff's water well. In the Rainwater case there was no finding of negligence. The court held negligence was not shown as a matter of law. In Dellinger, the trial court withdrew the case from the jury and rendered judgment for the defendant. The court held the evidence raised issues of fact and the question of negligence should have been submitted to the jury. These cases do not support appellants' contention.

There was evidence that simultaneously with the explosions in the caliche pit, appellee's house shook and one sitting in a chair in the neighboring house felt as if one would 'catch hold of the back of your chair and give you a shake with their hand'. Cracks appeared in the brick house and foundation and walls of the frame house and floor of the barn, large rocks 'as big as my head or larger' came from the blasts, kitchen cabinets were damaged and the water wells produced much less water of a dirty quality. When the evidence is considered most favorably to the appellee, we believe there was some evidence appellants used more explosives than was reasonably necessary. Kelly v. McKay (supra). Cage Brothers v. McCormick (Tex.Civ.App.) 344 S.W.2d 203 (Ref.N.R.E.). Pelphrey v. Diver (Tex.Civ.App.) 348 S.W.2d 453 (Ref.N.R.E.).

In addition to evidence offered by appellants as to the amount of explosives used, hole spacing, delayed firing patterns and other precautions used, appellants offered other evidence directly in conflict with evidence offered by appellee. A safety engineer inspected and approved the shooting plans; a blastcorder was placed on a neighbor's property which was some 700 feet closer to the pit than appellee's and tests showed no vibrations were recorded at that distance. Mr. William Miller, a Geo-science professor at Texas Technological College and Dr. Leet, professor of Seismology and Geology at Harvard testified for appellants. The latter's qualifications in the field of causes and effects of vibrations produced from explosives were most impressive. Both experts inspected the premises after the blasting. Miller examined...