Streety v. Chambers, 3789

• Decision Date: 03 May 1963
• Docket Number: No. 3789,3789
• Citation: 368 S.W.2d 148
• Parties: Mabel Theo STREETY, Appellant, v. Eugene V. CHAMBERS et al., Appellees.
• Court: Texas Court of Appeals

Page 148

368 S.W.2d 148

Mabel Theo STREETY, Appellant, v. Eugene V. CHAMBERS et al., Appellees.

No. 3789.

Court of Civil Appeals of Texas, Eastland.

May 3, 1963.

Rehearing Denied May 31, 1963.

Carter, Gallagher, Jones & Magee, Billy B. Joiner, Dallas, for appellant.

Brundidge, Fountain, Elliott & Bateman, Dallas, for appellees.

GRISSOM, Chief Justice.

The widow of Alvah James Streety sued Eugene V. and Hiram L. Chambers to recover damages resulting from the death of her husband caused by blasting rock on defendants' premises. Burlison owns the 58 acre tract of land upon which the rock quarry is located. Burlison sold the rock, in place, to Dallas County and it contracted with the Chambers to blast and crush the rock. The Chambers entered on said premises in March, 1959, to conduct blasting operations. They completed that contract in July, 1959, and moved their equipment. They returned to the rock quarry on April 4, 1960, to conduct further blasting operations, moving their equipment back. On April 5th, the Chambers made the necessary preparation and detonated a blast at 4:45 P.M. The body of Mr. Streety was discovered on the rock pit floor, covered by rock, at 10:00 A.M., April 6th, by one of Chambers' employees. A geologist's hammer and leather pouch was by his body. On July 15, 1959, soon after the first blasting operation by the Chambers, an article appeared in a Dallas newspaper to the effect that fool's gold had been blasted out of the ground at a rock pit near Cedar Hill. The deceased was a rock hound and collected fool's gold and fossil rocks, as a hobby. He read that article and prior to the day of his death had visited the Burlison Rock Pit. Numerous fool's gold collectors visited the pit after July 15, 1959. When defendants were blasting there in 1959, four signs were on the premises bearing the word 'explosives' in white letters on a red background. The defendants did not post such signs on the premises when they returned on April 4, 1960. There was no evidence that defendants knew Streety was about the quarry, nor was there evidence that he was an invitee, or that defendants willfully, wantonly, or through gross negligence injured him. The jury found he was a trespasser. Appellant does not contend that this finding is without support in the evidence. It was undisputed that two persons searched the floor of the rock quarry fifteen to twenty-five minutes before the fatal blast and that one of the defendants drove down the road north of the quarry a few minutes before the blast and found no people or automobiles in the area and that traffic on old highway 57 was blocked both south and north of the quarry until after the blast and that a few minutes before the detonation defendants' employee looked into the pit and yelled, 'Fire in the hole!'

The case was tried on the theory that (1) defendants owed a high degree of care to members of the public, but that (2) if deceased was a trespasser there was no liability. Defendants objected to the submission of issues based on the theory that defendants owed a 'high' degree of care. A jury found that (1) Streety died as a result of the dynamite explosion; (2) that defendants, in the exercise of a 'high' degree of care, should have known that some member of the public was likely to be within the danger area of the blast; (4 and 5) that the failure of the defendants to post signs warning of the blasting was a failure to use a 'high' degree of care and a proximate cause of the death of Streety; (6 and 7) that defendants failed to keep a proper lookout and that such failure was a proximate cause of Streety's death; (10 and 11) that deceased failed to keep a proper lookout but that such failure was not the proximate cause of his death; (13 and 14) that the failure of the deceased to make his presence known to defendants was negligence but not a proximate cause of his death.

In answer to issue 15, the jury found that deceased was a trespasser on defendants' premises. Plaintiff objected to the submission of that issue upon the ground that Streety's status as a trespasser was immaterial because defendants were engaged in the highly dangerous activity of blasting with dynamite and that an affirmative answer thereto would not require a judgment for defendants. The court sustained defendants' motion for judgment predicated upon the theory that the jury's finding that deceased was a trespasser entitled them to judgment. Judgment was rendered for the Chambers and Mrs. Streety has appealed.

Appellant contends the court erred in overruling her motion for judgment on the verdict and in sustaining defendants' motion because the finding that Streety was a trespasser was immaterial in a case tried upon the theory that a user of explosives is under a duty to exercise a 'high' degree of care for protection of the public. Appellant says the general rule that the possessor of land owes a trespasser no duty other than to refrain from injuring him by intentional or wanton conduct is too well established to require citation of authority; that the inapplicability of that rule to cases involving the use of explosives is not so well known but that in such cases the trespasser status of the person killed is immaterial. Appellant says that the user of explosives owes a duty to the public to use a high degree of care to protect it from the negligent operation of such a highly dangerous activity and the fact that a member of the public is a trespasser on defendants' premises does not affect defendants' liability.

Appellant relies principally upon the Supreme Court's decision in Dezendorf Marble Company v....