Universal Atlas Cement Co. v. Oswald

• Decision Date: 10 December 1941
• Docket Number: No. 2374-7715.,2374-7715.
• Citation: 157 S.W.2d 636
• Parties: UNIVERSAL ATLAS CEMENT CO. v. OSWALD et al.
• Court: Texas Supreme Court

157 S.W.2d 636

UNIVERSAL ATLAS CEMENT CO. v. OSWALD et al.

No. 2374-7715.

Commission of Appeals of Texas, Section A.

December 10, 1941.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Joe Oswald and wife against the Universal Atlas Cement Company for damages to land caused by blasting operations of the defendant. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 135 S.W.2d 591, and defendant brings error.

Affirmed.

Nat Harris, Harris & Gordon, Margaret Harris Gordon, and Mabel Grey Howell, all of Waco, for plaintiff in error.

Fitzpatrick & Dunnam, of Waco, for defendants in error.

BREWSTER, Commissioner.

This is an action for damages brought by Joe Oswald and wife (defendants in error here) against Universal Atlas Cement Company (plaintiff in error here), in which the plaintiffs alleged that on land adjoining the farm of 138 acres on which they lived in McLennan County the defendant owned, operated and maintained a cement manufacturing plant, as a part of which it operated a quarry from which it blasted lime rock from a stratum of solid rock underlying both the farm of plaintiffs and the lands of defendant; that on plaintiffs' farm were two wells dug into the aforesaid stratum of solid rock which for many years prior to July 15, 1935, had continuously furnished ample water for plaintiffs' household use and for the livestock kept by them on the farm; that on or about July 15, 1935, the defendant in its quarrying operations caused "heavy, unusual and unreasonable and excessive and unnecessarily large quantities of dynamite" and other explosives to be exploded in its said quarry adjoining plaintiffs' farm thereby "causing the structure of the earth in and under plaintiffs' said farm to quake and vibrate in such manner as to break and damage the structure thereunder in such manner and to the extent as to release the water from plaintiffs' said wells and the subterranean water and moisture therefrom and permanently destroyed said wells and reduced the value of said farm"; that such releasing of the subterranean moisture depleted the arable surfaces of the farm of the moisture necessary to the proper cultivation thereof and destroyed its fertility, its vegetation and crops as well as the grass which formerly grew in the pastures thereof to sustain plaintiffs' livestock; that said negligent acts proximately caused plaintiffs' damages, which were alleged to be $75 per acre, or a total of $10,350. Defendant's answer (in so far as our discussion is concerned) was a general denial and a special allegation that "it is necessary to use an explosive for the purpose of breaking up the limestone so that it can be conveniently handled and transported from the quarry to its mill and that in the use of explosives in blasting the rock it exercises the highest degree of skill and care under the circumstances, and in accordance with the generally accepted practice followed by cement plants throughout Texas and the United States in the blasting of rock for the purpose of manufacturing it into cement," and that, therefore, the plaintiffs' damages were not due to its negligence.

With the issues thus joined the jury found (1) that on or about July 15, 1935, the defendant used an excessive quantity of dynamite in blasting its quarry; (2) that such use was negligence; (3) that the use of plaintiffs' wells was destroyed on said date, (4) as a proximate result of defendant's negligence in using said excessive quantity of dynamite; (5) that the blasting on July 15, 1935, cracked the solid structure under plaintiffs' farm, (6) rendering said farm less productive; (7) that said farm was so rendered less productive as a proximate result of defendant's negligence in using an excessive quantity of dynamite; (8) that its reasonable market value was reduced as a proximate result of defendant's said negligence; (9, 10 & 11) that said reduced value was $6,900; (12) that defendant did not adopt the usual and customary practice in its blasting operations at its quarry; and (13) did not exercise ordinary care in carrying on said blasting operations.

Upon these findings the trial court entered judgment for plaintiffs in the sum of $6,900. The defendant duly appealed to the Court of Civil Appeals, which in all things affirmed said judgment. See 135 S. W.2d 591.

As we analyze plaintiff in error's assignments its principal complaints fall into two groups, namely (1) that the Court of Civil Appeals erroneously applied the doctrine of res ipsa loquitur; (2) that there was no evidence to show negligence on the part of defendant or that the same was a proximate cause of plaintiffs' damages.

We do not believe that the doctrine of res ipsa loquitur is applicable to this case. That principle is invoked where mere proof that an accident occurs is sufficient to cast upon the alleged wrongdoer the burden to show that such accident was not due to any negligence of his; that is, the thing bringing about a given accident being under the management of defendant thereby placing him in a better position than was the injured party to foresee and avert the catastrophe, the accident is regarded as so unusual as that, in the very nature of things, it suggests negligence on the part of him who brings it about. See 30 Tex.Jur., § 131. Situations to which the doctrine has been applied as raising an inference of negligence where none was specially alleged or proved are: An automobile was so operated that it overtook and collided with a motorcycle on which the injured party was riding on the proper side of the road at a reasonable and lawful rate of speed, Edwards v. Hawkins, Tex. Civ.App., 77 S.W.2d 1098; a long freight train went off the track at a curve thereby loosing quantities of oil and gasoline onto plaintiffs' land sickening his cattle and rendering his land unfit for grazing purposes, Gulf, C. & S. F. Ry. Co. v. Dunman et al., Tex.Com.App., 27 S.W.2d 116, 72 A. L.R. 90; plaster fell on the head of a customer in a store injuring him, Taylor v. Popular...