Sauer v. Palmer Press Brick Works , 1917 Tex. App. LEXIS 440 ( 1917 )

The appeal is to review the correctness of the ruling of the trial court in peremptorily instructing a verdict for the defendant. And it is believed that, according to the evidence in the case, it should be held that the court did not err. The evidence sufficiently shows that the leather belt was old and worn and insufficient to hold the metal cups fast and secure to the belt, and that because of the deficient condition of the leather belt several of the metal cups had become loose and unfastened from the belt. And the evidence would warrant a finding by the jury that the furnishing and use by the defendant of the worn and insufficient belt was negligence. But at the time the plaintiff was doing his work in removing the loose metal cup from the defective belt, the belt was not being operated and the machinery was stopped. And the evidence shows without dispute that the plaintiff's injury did not proceed from his work of itself in removing the loose metal cup from the defective belt or because of the defective belt. The sudden starting of the machinery, which had been stopped for the purpose of safely doing the work in hand, caused the belt to move upward, and this act of starting the machinery caused the plaintiff's hand to be injured. Situated as plaintiff's hand was at the time, inside the elevator shaft, it would have been injured by the sudden operation of the belt, irrespective of whether the belt was defective or not defective. And therefore it would conclusively appear that the sole proximate cause of the plaintiff's injury was the act of Jolly Tucker in starting the machinery when he did, and that Jolly Tucker and the plaintiff were fellow servants. Lumber Co. v. Hastings, 152 S.W. 863; Oil Co. v. Edgmon, 155 S.W. 1012; Jones v. Lumber Co., 162 S.W. 420.

The plaintiff claimed that the elevator box or shaft was not properly constructed, in that "there ought to have been a door in that elevator box to enable me to get inside of the box to the belt when it clogged up." The elevator box or shaft was, it appears, a permanent structure, and had existed as first constructed for more than eight years. The plaintiff testified:

"When I first went to work there, that elevator was just like it was when I got hurt. The box went up to the top of the building and came down in this pit. I had to get in the pit and clean the box when it was choked all the time I worked there, the same as I did on the occasion I was hurt. I was there six or seven years. * * * I went down in that pit and cleaned it out just the same way I had cleaned it out lots of times before, and I frequently cleaned it out; had frequently gone down into the hole and gone through just exactly the same thing I did that time and cleaned it out; I had been doing that ever since I had gone there to work the first time, and I did it that time just the same way I had always done it."

Thus it conclusively appears plaintiff was aware of the structure of the elevator box or shaft as it existed and of which he complains. And this evidence would plainly show that no danger existed on account of its construction as it existed, but for the fact that the machinery was started in operation while plaintiff had his hand in a position to be caught in the elevator. The particular danger arose and proceeded from starting the machinery, and this danger was just as apparent to the plaintiff accustomed as he said he was to machinery and the operation of this elevator, as to any one connected with the defendant. Suggesting, as plaintiff does, the improvement that should have been made in the elevator box or shaft, it may not be said he was ignorant of the dangers of the condition that existed. It is believed that, under the evidence most favorable to the plaintiff any injury arising to him from the bottom of the elevator box or shaft not being, as claimed by plaintiff, properly constructed, was assumed by plaintiff. Oil Co. v. Shaw,27 Tex. Civ. App. 65, 65 S.W. 693; Brown v. Miller, 62 S.W. 547.

The judgment is affirmed.