Mt. Franklin Lime & Stone Co. v. May
Mt. Franklin Lime & Stone Co. v. May
Opinion of the Court
Appellee filed suit in the district court of El Paso county against the Mt. Franklin Lime & Stone Company, a corporation, Richard Capíes and E. A. Capíes. Thereafter Richard Capíes having died, Mrs. Margaret Ann Capíes, the independent executrix of the deceased, was made a party. The plaintiff claimed damages of the defendants for injuries to her residence in the city of El Paso 'caused by the operations of the defendants in blasting rock at quarries owned and operated by them at the base of Mt. Franklin in the city limits. The plaintiff alleged in her amended pleading that the blasting operations were carelessly and negligently carried on without due regard for the rights of the plaintiff, and that many and heavy blásts were set off and exploded by the defendants continuously from June, 1909, until about the time of the trial, and that as a result her residence, situated in the vicinity of the quarries, “was shaken and jarred and greatly and materially damaged and cracked, its walls being caused to crack and to 'bulge, and the plastering to fall from the walls and ceiling, so as greatly to injure and depreciate the value of same.” She further alleged that the house was shaken by concussion and otherwise, the walls being cracked through from outside to inside and through the partitions, all through the negligence of the defendants in using greater quantities of explosives than they should have used, and in improperly exploding the blasts, and in carrying on their operations at the quarries without a due regard for the rights of the plaintiff and the security of her property. The defendants, through their attorneys, filed separate answers, the answers being in effect identical, save that E. A. Ca-píes pleads over against Mrs. Capíes in the event of a recovery against him. Defendants pleaded general denial and contributory negligence; that the plaintiff’s house, if damaged at all, was damaged by the negligence of the plaintiff in failing to provide a safe place and proper foundation therefor, and that she negligently failed to provide proper material for the foundation and house and proper plans and specifications for the construction thereof, and that same was negligently constructed in an improper manner out of defective material; that the damage, if any, suffered by the house was caused by other parties in blasting in the vicinity. The corporation pleaded over against Mrs. Ca-píes, alleging that the blasting was done in the lifetime of Richard Capíes on land owned by him as a tenant in common with another for his use and benefit, and that the company had nothing to do with said blasting. Mrs. Capíes adopted the answer of the corporation, and pleaded, in addition thereto, that the plaintiff built her house in its locality with full knowledge of the fact that the blasting was being done at the quarries, and was therefore guilty of negligence in so doing and in building said house as it was built. E. A. Capíes adopted the answer of his codefendant, the Lime & Stone Company, and also pleaded over against Mrs. Capíes, the independent executrix of the estate! of Richard Capíes, deceased. Upon trial before a jury a verdict was returned for $1,500 against the Lime & Stone Company and Margaret Ann Capíes, as executrix, and in favor of E. A. Capíes, according to instructions.
Appellee objects to the consideration of each of the assignments of error, and for the *758 reasons hereinafter indicated we have sustained their objections to most of them. This court has at all times been liberal in its interpretation of the rules governing the presentation and briefing of cases upon appeal, and in this instance, should we apply the rules with any degree of strictness whatever, we would not consider any of the appellants’ assignments. Those assignments which are considered are considered by virtue only of a liberal interpretation of the rules. Counsel representing appellants have several times heretofore been admonished by this court to have a due regard for the rules regulating the presentation and briefing of causes, and, since they persist in a refusal to observe the rules, we deem it our duty to enforce them.
Assignments 3 to 8, inclusive, are not considered because not supported ¡by proper propositions and statements.
The ninth assignment is not considered. The proposition in support thereof is multifarious, and the statement violates that portion of rule 31 heretofore quoted.
The statements under the tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments are subject to the same objections, and they are therefore not considered.
The seventeenth assignment is overruled. We are of the opinion that the witness had shown himself qualified to testify in regard to the matters referred to in the bill supporting this assignment.
The sixth paragraph of the court’s charge does not assume that there was more than one wall of plaintiff’s house bulged or damaged, as contended in the twenty-second assignment, and this assignment is therefore overruled, as the charge is not subject to the criticism made.
The charge is not subject to the objections urged in support of the twenty-third assignment, and it is therefore overruled.
The eighth special instruction requested by defendants was properly refused, and the twenty-fourth assignment is overruled.
The twenty-fifth assignment is overruled. Special charge No. 3, refusal of which is here complained of, was covered by the general charge.
The twenty-sixth assignment is not considered. It is submitted as a proposition; and cannot be considered because it raises more than one question. See the authorities cited above. Neither is it supported by a proper statement, as is required by rule 31.
The same objections apply to the twenty-seventh assignment, and this likewise is not considered.
The twenty-eighth assignment is not considered because it is not supported by a brief statement, as required by the rules. The court is here referred to a mass of irrelevant matter which could have no possible bearing upon the question attempted to be here presented, and the court will not search the same to ascertain whether it contains any matter relevant to. the subject.
The twenty-ninth assignment is not considered for the following reasons: First, it is not correctly copied in the brief; second, it is submitted as a proposition and as such is multifarious; third, the subjoined statement is not £n accordance with rule 31 requiring a brief statement.
The thirtieth assignment is not considered because unsupported by proper statement.
The thirty-third, thirty-fourth, and thirty-fifth assignments are overruled, as there was evidence warranting the submission of the issues here complained of.
My Associate concurs with me in the criticisms made of the manner in which appellants have briefed the case, and we are in accord in refusing to consider the assignments of error above noted.
Affirmed.
Reference
- Full Case Name
- MT. FRANKLIN LIME & STONE CO. Et Al. v. MAY
- Cited By
- 10 cases
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- Published